1

SPECIAL PENAL LAW :

INDETERMINATE SENTENCE LAW

( ACT 4103 as amended by ACT 4225 )

[G.R. No. 38332. December 14, 1933.] THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. VALERIANO DUCOSIN, defendant-appellant. SYLLABUS 1. INDETERMINATE SENTENCE LAW, CONSTRUED; MAXIMUM AND MINIMUM PENALTIES. Under section 1 of Act No. 4103 the court must, instead of a single fixed penalty, determine two penalties, referred to in the Indeterminate Sentence Act as the "maximum" and "minimum". The prisoner must serve the minimum penalty before he is eligible for parole under the provisions of Act No. 4103, which leaves the period between the minimum and maximum penalty indeterminate in the sense that he may, under the conditions set out in said Act, be released from serving said period in whole or in part. He must be sentenced, therefore, to imprisonment for a period which is not more than the "maximum" nor less than the "minimum", as these terms are used in the Indeterminate Sentence Law. 2. ID.; ID. The maximum penalty must be determined, in any case punishable by the Revised Penal Code, in accordance with the rules and provisions of said Code exactly as if Act No. 4103, the Indeterminate Sentence Law, had never been passed. It was not the purpose of said Act to make inoperative any of the provisions of the Revised Penal Code. Neither the title nor the body of the Act indicates any intention on the part of the Legislature to repeal or amend any of the provisions of the Revised Penal Code. 3. ID.; MINIMUM PENALTY. In determining the "minimum" penalty Act No. 4103 confers upon the courts in the fixing of penalties the widest discretion that the courts have ever had. The determination of the "minimum" penalty presents two aspects: first, the more or less mechanical determination of the extreme limits of the minimum imprisonment period; and second, the broad question of the factors and circumstances that should guide the discretion of the court in fixing the minimum penalty within the ascertained limits. We construe the expression in section 1 "the penalty next lower to that prescribed by said Code for the offense" to mean the penalty next lower to that determined by the court in the case before it as the maximum (that is to say the correct penalty fixed by the Revised Penal Code). 4. ID.; ID. The Indeterminate Sentence Law, Act No. 4103, simply provides that the "minimum" shall "not be less than the minimum imprisonment period of the penalty next lower." In other words, it is left entirely within the discretion of the court to fix the minimum imprisonment anywhere within the range of the next lower penalty without reference to the degrees into which it may be subdivided. 5. ID.; ID. Keeping in mind the basic purpose of the Indeterminate Sentence Law "to uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic

2 usefulness" (Message of the Governor-General, Official Gazette No. 92, vol. XXX I, August 3, 1933), it is necessary to consider the criminal, first, as an individual and, second, as a member of society. In a word, the Indeterminate Sentence Law aims to individualize the administration of our criminal law to a degree not heretofore known in these Islands. Some factors to be taken into consideration are indicated. 6. ID.; ID. Act No. 4103 does not require the court to fix the minimum term of imprisonment in the minimum period of the degree next lower to the maximum penalty. DECISION This appeal from a judgment of the Court of First Instance of Manila convicting the appellant of the crime of frustrated murder was referred by the first division to the court in banc for the proper interpretation and application of Act No. 4103 of the Philippine Legislature approved on December 5, 1933, commonly known as the "Indeterminate Sentence Law". As this is the first case which has come before us involving the Indeterminate Sentence Law, it will be convenient to set out here some of its provisions. Section 1 of Act no. 4103 is as follows: "Hereafter, in imposing a prison sentence for an offense punished by acts of the Philippine Legislature, otherwise than by the Revised Penal Code, the court shall order the accused to be imprisoned for a minimum term, which shall not be less than the minimum term of imprisonment provided by law for the offense, and for a maximum term which shall not exceed the maximum fixed by law; and where the offense is punished by the Revised Penal Code, or amendments thereto, the court shall sentenced the accused to such maximum as may, in view of attending circumstances, be properly imposed under the present rules of the said Code, and to a minimum which shall not be less than the minimum imprisonment period of the penalty next lower to that prescribed by said Code for the offense. Except as provided in section two hereof, any person who shall have been so convicted and sentenced and shall have served the minimum sentence imposed hereunder, may be released on parole in accordance with the provisions of this Act." Section 2 is as follows: "This Act shall not apply to persons convicted of offenses punished with death penalty or life imprisonment; to those convicted of treason, conspiracy or proposal to commit treason; to those convicted to misprision of treason, sedition or espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; to those who maximum term of imprisonment does not exceed one year; nor to those already sentenced by final judgment at the time of approval of this Act, except as provided in section five hereof." Section 3 of Act No. 4103 creates a "Board of Indeterminate Sentence" to be composed of the Secretary of Justice as chairman and four members to be appointed by the Governor-General, with the advice and consent of the Philippine Senate. This section describes the qualifications of the members. Section 4 gives the board authority to adopt rules of procedure and provides for the compensation of the members.

3 Section 5 makes it the duty of the board to study the physical, mental and moral record of the prisoners who shall be eligible to parole and authorizes the board to determine the proper time for the release of such prisoners. After a prisoner has served the "minimum penalty" imposed upon on him and the board is satisfied that such prisoner is fitted by his training for release and that there is a reasonable probability that he will not violate the law again and that his release "will not be incompatible with the welfare of society", the board may in its discretion authorize the release of such prisoner on parole. The board may also recommend the release on parole of other prisoners may also recommend the release on parole of other prisoners previously convicted of any offense other than those named in section 2. Section 6 provides for the surveillance of prisoners released on parole for a period "equivalent to the remaining portion of the maximum sentence imposed upon him or until final release and discharge by the Board of Indeterminate Sentence." Section 7 provides that a certified copy of the board's order of conditional or final release shall be filed with the court and with the Chief of Constabulary. Section 8 provides that any prisoner who violates any of the conditions of his parole, who violates any of the conditions of his parole, who violates any law during the period of surveillance for which he has been convicted, shall be subject to re-arrest and confinement and "shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed to prison" unless the board grants a new parole. Section 9 provides that Act No. 4103, the Indeterminate Sentence Law, shall not be construed to impair the powers given to the Governor-General under section 64 of the Administrative Code or the Organic Act of the Philippine Islands. By its terms, Act No. 4103 became law upon its approval, that is to say, on December 5, 1933. In the case before us, Valeriano Ducosin was tried on September 30, 1932, for the crime of frustrated murder upon the following information: "That on or about the 23d day of September, 1932, in the City of Manila, Philippine Islands, the said accused did then and there willfully, unlawfully and feloniously, and with intent to kill, treacherously attack, assault and wound one Rafael Yanguas by then and there suddenly and without any warning, stabbing the latter with a knife, thereby inflicting upon him several wounds in different parts of the body, some of which are necessarily mortal, thus performing all the acts of execution which would produce the death of the said Rafael Yanguas as a consequence, but which, nevertheless, did not produce it by reason of causes independent of the will of said accused, that is, by the timely intervention of medical assistance. "Contrary to law." Upon arraignment the accused pleaded guilty and was sentenced to ten years and one day of prision mayor with the accessory penalties prescribed by law and to pay the costs. The penalty for the crime of murder, under article 248 of the Revised Penal Code, is reclusion temporal in its maximum period to death. Under article 50, the penalty for a frustrated felony is the one next lower in degree to that prescribed for the consummated felony, which in the present case is prision mayor in its maximum period to reclusion temporal in its medium period, or from ten years and one day to seventeen years and four months. The accused having pleaded guilty, this extenuating circumstance, in the absence of any aggravating circumstance, fixes the penalty within the minimum period, that is to say, from

4 ten years and one day to twelve years, leaving to the discretion of the court the precise time to be served within said range, i. e., not less than ten years and one day nor more than twelve years. The penalty imposed by the trial judge being within this range is correct and therefore is the penalty prescribed by the Revised Penal Code for the offense which this accused has committed. As Act No. 4103, the Indeterminate Sentence Law, was enacted after this appeal was lodged in this court, we are now required to revise the sentence imposed upon the appellant and to bring the same into conformity with Act No. 4103. It will be observed from section 1 of said Act that the court must now, instead of a single fixed penalty, determine two penalties, referred to in the Indeterminate Sentence Act as the "maximum" and "minimum". The prisoner must serve the minimum penalty before he is eligible for parole under the provisions of Act No. 4103, which leaves the period between the minimum and maximum penalty indeterminate in the sense that he may, under the conditions set out in said Act, be released from serving said period in whole or in part. He must be sentenced, therefore, to imprisonment for a period which is not more than the "maximum" nor less than the "minimum", as these terms are used in the Indeterminate Sentence law. This leads up to the important question: How shall the "maximum" and the "minimum" penalty be determined? The maximum penalty must be determined, in any case punishable by the Revised Penal Code, in accordance with the rules and provisions of said Code exactly as if Act No. 4103, the Indeterminate Sentence Law, had never been passed. We think it is clear from a reading of Act No. 4103 that it was not its purpose to make inoperative any of the provisions of the Revised Penal Code. Neither the title nor the body of the Act indicates any intention on the part of the Legislature to repeal or amend any of the provisions of the Revised Penal Code. The legislative history of the Act further shows that attention was called to the necessity for taking care "so as not to bring the provisions of this bill in conflict with the provisions of our penal laws, especially with those treating with penalties." (Committee Report, House of Representatives H-3321, Ninth Philippine Legislature, Third Session.) The last mentioned report gives an illustration of the application of the Indeterminate Sentence Law to offenses penalized by the Revised Penal Code: "Suppose that a man is found guilty of malversation of public funds in the amount of P10,000. No mitigating nor aggravating circumstances are present. Under this law the court may impose on him a maximum sentence not exceeding ten years and eight months but not less than nine years, four months and one day (see art. 217, No. 3, Revised Penal Code), and a minimum which shall not be less than four years, two months and one day (the minimum imprisonment period of prision correccional in its maximum to prision mayor in its minimum. See article 61, Revised Penal Code). The court, therefore, may sentence the accused to be imprisoned for not less than five years nor more than ten years or for not less than seven years nor more than ten years and eight months, etc." It will be seen from the foregoing example that the "maximum" is determined in accordance with the provisions of the Revised Penal Code. In the example given reference is made to article 217, paragraph 3, of the Revised Penal Code which provides that the defendant shall suffer the penalty of prision mayor in its medium and maximum period. The penalty is placed in the medium degree because of the absence of mitigating or aggravating circumstance, that is to say, anywhere between nine years, four months and one day and ten years and eight months in

5 the discretion of the court. In the case on appeal here the penalty was imposed in the minimum of the proper penalty under the Revised Penal Code because of the plea of guilty, that is to say, between ten years and one day and twelve years in the discretion of the court. This discretion is in nowise impaired or limited by Act No. 4103. The trial court, in conformity with the discretion conferred upon it by the Revised Penal Code, might have assessed the penalty at, let us say, eleven years. We wish to make it clear that Act No. 4103 does not require this court to assess the said penalty at 12 years, which is the longest time of imprisonment within the minimum degree. We find, therefore, that ten years and one day of imprisonment conforms to the provisions and rules of the Revised Penal Code and is therefore fixed and established as the maximum of the sentence which shall be imposed upon the appellant. We come now to determine the "minimum imprisonment period" referred to in Act No. 4103. Section 1 of said Act provides that this "minimum which shall not be less than the minimum imprisonment period of the penalty next lower to that prescribed by said Code for the offense." We are here upon new ground. It is in determining the "minimum" penalty that Act No. 4103 confers upon the courts in the fixing of penalties the widest discretion that the courts have ever had. The determination of the "minimum" penalty presents two aspects: first, the more or less mechanical determination of the extreme limits of the minimum imprisonment period; and second, the broad question of the factors and circumstances that should guide the discretion of the court in fixing the minimum penalty within the ascertained limits. We construe the expression in section 1 "the penalty next lower to that prescribed by said Code for the offense" to mean the penalty next lower to that determined by the court in the case before it as the maximum (that is to say the correct penalty fixed by the Revised Penal Code, see our discussion above). In the example which the legislature had before it in the Committee Report above mentioned, the maximum of the sentence was correctly stated to be the medium degree of prision mayor in its medium and maximum period. The penalty next lower is prision correccional in its maximum degree to prision mayor in its minimum degree (article 61, paragraph 4, Revised Penal Code), that is to say, anywhere from four years, two months and one day to eight years. The Indeterminate Sentence Law, Act No. 4103, simply provides that the "minimum" shall "not be less than the minimum imprisonment period of the penalty next lower." In other words, it is left entirely within the discretion of the court to fix the minimum of the penalty anywhere between four years, two months and one day and eight years. In the example given by the committee they stated that the court might fix the minimum penalty at five years or seven years. In the case before us on this appeal the next lower penalty to the maximum already determined as aforesaid, is prision correccional in its maximum period to prision mayor in its medium period, that is to say, from four years, two months and one day to ten years. As stated, it is in the discretion of the court to fix the time of imprisonment within the said range without reference to the technical subdivisions of maximum degree, medium degree and minimum degree, and in this particular the courts are vested as stated with a wider discretion than they ever had before. We come now to the second aspect of the determination of the minimum penalty, namely, the considerations which should guide the court in fixing the term or duration of the minimum period of imprisonment. Keeping in mind the basic purpose of the Indeterminate Sentence Law "to uplift and redeem valuable human

6 material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness" (Message of the Governor-General, Official Gazette No. 92, vol. XXXI, August 3, 1933), it is necessary to consider the criminal, first, as an individual and, second, as a member of society. This opens up an almost limitless filed of investigation and study which it is the duty of the court to explore in each case as far as is humanly possible, with the end in view that penalties shall not be standardized but fitted as far as is possible to the individual, with due regard to the imperative necessity of protecting the social order. Considering the criminal as an individual, some of the factors that should be considered are: (1) His age, especially with reference to extreme youth or old age; (2) his general health and physical condition; (3) his mentality, heredity and personal habits; (4) his previous conduct, environment and mode of life (and criminal record if any); (5) his previous education, both intellectual and moral; (6) his proclivities and aptitudes for usefulness or injury to society; (7) his demeanor during trial and his attitude with regard to the crime committed; (8) the manner and circumstances in which the crime was committed; (9) the gravity of the offense (note that section 2 of Act No. 4103 excepts certain grave crimes this should be kept in mind in assessing the minimum penalties for analogous crimes). In considering the criminal as a member of society, his relationship, first, toward his dependents, family and associates and their relationship with him, and second, his relationship towards society at large and the State are important factors. The State is concerned not only in the imperative necessity of protecting the social organization against the criminal acts of destructive individuals but also in redeeming the individual for economic usefulness and other social ends. In a word, the Indeterminate Sentence Law aims to individualize the administration of our criminal law to a degree not heretofore known in these Islands. With the foregoing principles in mind as guides, the courts can give full effect to the beneficent intention of the Legislature. It is our duty now to assess the minimum imprisonment period under Act No. 4103 in the case before us on this appeal. Unfortunately, as this defendant was convicted before Act No. 4103 became effective, and as we know nothing of his antecedents because his plea of guilty rendered it unnecessary to take any testimony, we are confined to the record before us. He plead guilty to all of the acts which constitute the crime of murder and only the timely intervention of medical assistance prevented the death of his victim and the prosecution of the appellant for murder. He was given the full benefit of the plea of guilty in the fixing of the maximum of the sentence. With such light as we have received from the record in this case, we have concluded that a reasonable and proper minimum period of imprisonment should be seven years, which is within the range of the penalty next lower in degree to the maximum, that is to say, within the range from four years, two months and one day to ten years of prision correccional in its maximum period to prision mayor in its medium period. We repeat that Act No. 4103 does not require the court to fix the minimum term of imprisonment in the minimum period of the degree next lower to the maximum penalty. The judgment of the court below is modified to this extent: that the defendantappellant is hereby sentenced to a maximum penalty of ten years and one day of prision mayor in its maximum degree, and to a minimum imprisonment period of seven years, and as thus modified, the judgment appeared from is affirmed. With costs de oficio.

7 [G.R. No. 41311. August 28, 1934.] THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. LEON MALLARI Y LAGMAN and LAO YU, defendants-appellants. SYLLABUS 1. CRIMINAL LAW; ROBBERY; RECIDIVISM AND CRAFT. The act of the appellants constitutes the crime of robbery as defined and penalized in article 294, subsection (5) of the Revised Penal Code. The aggravating circumstances of recidivism and craft should be taken into consideration in the case of the appellant L. Y. Therefore, the judgment appealed from is in accordance with the law with respect to the said appellant L. M., but should be modified with respect to the appellant L. Y., by imposing upon him the same penalty as that imposed upon the former on the ground that the aggravating circumstance of craft, which was taken into consideration against him, is not compensated by any mitigating circumstance. 2. ID.; ID.; ID. The circumstance of recidivism, like any other circumstances or fact which may alter the degree of liability of an accused or affect him one way or another, should be proven as satisfactorily as the crime itself with which he is charged. 3. INDETERMINATE SENTENCE LAW, INTERPRETATION; MINIMUM PENALTY. In the judgment rendered by this court in the case of People vs. Ducosin (59 Phil., 109), it has not been stated in unequivocal and express terms that the minimum of the penalty to be imposed upon an accused should necessarily and invariably be fixed within the range of the penalty next lower in degree, as determined in conformity with rule 4 of article 61 of the Revised Penal Code. Therefore, such ruling could not have been sustained now inasmuch as to do so would amount to annulling or denying to the courts the discretion granted them by Act No. 4103, which discretion is necessarily inferred from the language thereof. 4. ID.; ID.; LEGISLATIVE INTENT. If the intention of the Legislature in enacting the law in question had been to restrict the courts in the use of such discretion by not permitting them to fix the minimum of the penalty to be imposed, except within the penalty next lower in degree to that prescribed for the offense, it would have so expressly stated or, at least, it would have stated that such minimum should never exceed the maximum of said next lower penalty, just as it clearly stated that said minimum "shall not be less than the minimum imprisonment period of the penalty next lower to that prescribed by said Code for the offense." 5. ID.; ID.; ID. The fact that the Legislature has provided that the minimum of a penalty shall not less than a certain limit therein specified is an indication that it intended to place no other restriction than this on the exercise of such discretion by the courts. 6. ID.; ID.; ID. This court is of the opinion that the rule established by said law is that the courts may be fix the minimum of the penalty to be imposed upon an accused from the minimum of the penalty next lower to that prescribed for the offense to a period, which, without being the same maximum penalty to be imposed upon him, would give the Board of Indeterminate Sentence, created by section 3 of Act No. 4103, sufficient time to make use of the discretion granted it by section 5 thereof, so that it may recommend at the proper time the release under parole of said accused if he deserves such clemency.

8 7. ID.; ID.; ID. Such minimum penalty should not be so short as not to give said board or the officials concerned sufficient time to study and observe the conduct of the accused and his progress or the changes he has undergone during his imprisonment for the purpose of properly determining his fitness to return to society without being a menace to the welfare thereof. Neither should it be too long, that the penalty thus imposed upon him would fail to serve as a deterrent to the commission of another crime or as a lesson for his guidance thereafter. In determining such minimum penalty, the age of the accused, his general health and physical condition, the degree of his mentality and morality, and his previous criminal record, if any, should necessarily be taken into consideration. DECISION The herein defendants Leon Mallari y Lagman and Lao Yu appealed from the judgment sentencing them respectively to the penalties of six years, ten months and one day of prision mayor and three years, eight months and one day of prision correccional, with the corresponding accessory penalties and the costs, on the ground that said judgment was not in accordance with the law. In their brief, they contend that the trial court committed the four alleged errors enumerated therein. All the questions raised by said appellants in their assignment of errors alleged to have been committed by the trial court are purely questions of fact. After carefully reviewing the evidence of record, this court is fully convinced that the facts are stated in the opinion of the court, to wit: The appellants herein invited Ellizar Dimson to accompany them to a certain Japanese hospital, the appellant Lao Yu promising to give a tip of one peso to both Dimson and the appellant Mallari, whom he pretended to have met by chance at Dasmarias Street in the City of Manila. Said appellants, simulating not to know each other, engaged said Dimson in conversation and brought him to Intramuros by way of Victoria Street. Upon arriving at the yard of the school building situated on said street, the appellant Lao Yu requested appellant Mallari to change a 10-peso bill, which he carried, for the purpose of giving them the tips he had promised. Under the pretext that he had no money with him, Mallari tried to pass the bill to Dimson, asking him to change it, but Dimson answered that he did not have enough money to make the change. In order to convince the appellants that he really did not have enough money, Dimson took his wallet from his pocket to show them its contents, whereupon Mallari immediately grabbed Dimson by both hands and wrested the wallet from him, emptying the contents thereof, which amounted to P1.50, into his hand. After taking Dimson's money, Mallari ran away and in order to prevent Dimson from making any noise or calling the attention of the neighborhood to the incident, the appellant Lao Yu threatened to strike him if he made any outcry. Saying this, he ran away and followed the appellant Mallari, who had already gone some distance. Then Ellizar Dimson, with the help of a street-car inspector and policeman Bartolome Rulloda, who happened to be passing, pursued the appellants. The latter, upon seeing that their attempt at escape was futile, stopped. Mallari went to meet policeman Rulloda to ask him what happened while the appellant Lao Yu hid on the ground floor of the house at number 96 San Juan de Letran Street. In answer to Mallari's question, policeman Rulloda asked him why they robbed Dimson of his money. Mallari answered asking his pardon. When asked where the money was, Mallari replied that Lao Yu, his co-appellant, had it. After Lao Yu's capture in the said house, he was required to return the money to Dimson and he delivered to policeman Rulloda the exact sum of P1.50 which had been taken from the former. The evidence shows that the appellant Leon Mallari is not a habitual delinquent but merely a recidivist, having been convicted of the crime of robbery by the

9 Court of First Instance of Manila in criminal case No. 24027 of said court on May 15, 1922. The Attorney-General contends that Lao Yu is likewise a recidivist but the evidence in support of his contention merely consists in the appellant's testimony that in 1927 he had been sent to the Boys' Training School for theft. This admission does not constitute sufficient evidence of recidivism on the ground that his having sent to the said training school necessarily implies that although he had been accused of said offense no judgment of conviction had been rendered against him. And this is so, because under Act No. 3203, which was approved on December 3, 1924, and in force in 1927, the same having been amended by Act No. 3559 only on November 26, 1929, and by article 80 of the Revised Penal Code on January 1, 1932, only minors under 18 years of age, who were accused of an offense not punishable by reclusion perpetua or death, were sent to the institution specified therein or to the Boys' Training School of the City of Manila. Said Act provided that in such cases, instead of rendering judgment of conviction against them, the court should order the suspension of all further proceedings and commit such minors to any of the aforesaid institutions. The pertinent provisions of said Act, as stated in sections 3 and 7 thereof, read as follows: "SEC. 3. Whenever any boy or girl less than eighteen years of age shall be accused in any court of an offense not punishable by life imprisonment or death, the court, before passing sentence of conviction, shall suspend all further proceedings in the case and shall commit such minor to the custody of any of the institutions mentioned in sections one and two of this Act, until said minor shall have reached his majority or for such less period as to the court may seem proper, subject to the conditions provided in section seven hereof, or may allow him to remain and be cared for elsewhere, under probation and subject to visitation and supervision of a probation officer, as hereinafter provided, whom the court may require to report from time to time on the case: . . . ." "SEC. 7. Any minor delinquent committed to an institution in accordance with sections three and five of this Act or allowed to stay elsewhere, may be paroled by the head of the institution, under such conditions as the latter may prescribe subject to the approval of the Public Welfare Commissioner, or may be returned to the court for either sentence or dismissal. The probation period of the minor allowed to stay at a place other than the institutions mentioned in sections one and two of this Act shall rest with probation officer and at its termination he shall return such minor to the court for either sentence or dismissal." Such is exactly the provision of the penultimate paragraph of article 80 of the Revised Penal Code, which reads as follows: "In case the minor fails to behave properly or to comply with the regulations of the institution to which he has been committed or with the conditions imposed upon him when he was committed to the care of a responsible person, or in case he should be found incorrigible or his continued stay in such institution should be inadvisable, he shall be returned to the court in order that the same may render the judgment corresponding to the crime committed by him." The evidence does not show whether or not the appellant Lao Yu was convicted under section 7 aforecited. It cannot be presumed that he was, for the reason that the circumstances of recidivism, like any other circumstances or fact which may alter the degree of liability of an accused or affect him one way or another, should be proven as satisfactorily as the crime itself with which he is charged. It is obvious, therefore, that Lao Yu is not a recidivist.

10

There is no question that the act of the appellants constitutes the crime of robbery as defined and penalized in article 294, subsection (5) of the Revised Penal Code. The aggravating circumstances of recidivism and craft should be taken into consideration in the case of the appellant Leon Mallari, and that of craft alone in the case of the appellant Lao Yu. Therefore, the judgment appealed from is in accordance with the law in so far as it affects the appellant Leon Mallari. With respect to the appellant Lao Yu, however, it should be modified by imposing upon him the same penalty as that imposed upon the former on the ground that the aggravating circumstances of craft, which was taken into consideration against him, is not compensated by any mitigating circumstance. Now then, in applying the provisions of Act No. 4103 to this particular case of the appellants, as required by sections 1 and 2 thereof, what minimum of the aforesaid penalty should be imposed? Should such minimum necessarily be taken from the penalty of arresto mayor merely because, according to rule 4 of article 61 of the Revised Penal Code, said penalty is the next lower to the minimum of the penalty prescribed for the offense committed by said appellants, to wit: prision correccional to prision mayor in its medium period, that is, from six months and one day to ten years? In the judgment rendered by this court in the case of People vs. Ducosin, for frustrated murder (59 Phil., 109), this question appears to have been decided in the affirmative penalty imposed upon Ducosin was ten years and one day of prision mayor, which is the minimum of the penalty extends from ten years and one day to seventeen years an four months, the penalty next lower in degree is prision correccional in its maximum degree to prision mayor in its medium degree, that is, four years, two months and one day to ten years; and that "it is in the discretion of the court to fix the time of imprisonment within the said range without reference to the technical subdivisions of maximum degree, medium degree, and in this particular the courts are vested as stated with a wider discretion than they ever had before." Under the said ruling, the minimum degree of said penalty imposed upon Ducosin was fixed at seven years, which period is really within the range of said next lower penalty. It is to be noted, however, that in said case it has not been stated in unequivocal and express terms that the minimum of the penalty to be imposed upon an accused should necessarily and invariably be fixed within the range of the penalty next lower in degree as determinated in conformity with said rule 4 of article 61 of the Revised Penal Code. Such ruling could not have been sustained then nor can it be sustained now on the ground that to do so would amount to annulling or denying to the courts the discretion granted them by Act No. 4103, which discretion is necessarily inferred from the text thereof which reads as follows: ". . . the court shall sentence the accused to such maximum as may, in view of attending circumstances, be properly imposed under the present rules of the said Code, and to a minimum which shall not be less than the minimum imprisonment period of the penalty next lower to that prescribed by said Code for the offense." (Section 1.) If the intention of the Legislature in enacting the law in question had been to restrict the courts in the use of their discretion by not permitting them to fix the minimum of the penalty to be imposed except within the range of the penalty next lower to that prescribed for the offense, it would have so expressly stated or at least, it would have stated that said minimum should never exceed the maximum of said next lower penalty just as it clearly said that "it shall not be less than the minimum imprisonment period of the penalty next lower to that prescribed by

11 said Code for the offense." Inasmuch as it has not so stated, this court cannot restrict the terms thereof, much less supply the deficiency, which is more or less imaginary, on the ground that in the law under consideration there is not the least indication that such was the intention of the Legislature. On the contrary, the fact that it has provided that the minimum of a penalty should not be less than a certain limit specified therein is an indication that it intended to place no other restriction than this on the exercise of such discretion by the courts. This court is of the opinion that the rule established by said Act is that the courts may fix the minimum of the penalty to be imposed upon an accused from the minimum of the penalty next lower to that prescribed for the offense to a period which, without being the same maximum penalty which should be imposed upon him would give the Board of Indeterminate Sentence, created by virtue of section 3 of Act No. 4103, sufficient time to make use of the discretion granted it by section 5 of the same Act, so that it may recommend at the proper time the release under parole of said accused if he deserves such clemency. Such minimum penalty should not be so short as not to give sail board or the officials concerned sufficient time to study and observe the conduct of the accused and his progress or the changes he has undergone during his imprisonment for the purpose of properly determining his fitness to return to society without being a menace to the welfare thereof. Neither should it be too long, that the penalty thus imposed upon him would fail to serve as a deterrent to the commission of another crime or as a lesson for his guidance thereafter. In determining such minimum penalty, the age of the accused, his general health and physical condition, the degree of his mentality and morality, and his previous criminal record, if any, should necessarily be taken into consideration. In view of the foregoing, and taking into consideration the age of the appellants, the nature of their offense, the criminal record of the appellant Mallari and the means employed by both in the commission thereof, the judgment appealed from is hereby modified by sentencing the appellant Leon Mallari to suffer the indeterminate penalty of from two years of prision correccional to six years, ten months and one day of prision mayor, and the appellant Lao Yu to the indeterminate penalty of one year of prision correccional to six years, ten months and one day of prision mayor, with the proportionate costs against both. So ordered.

[G.R. No. 45263. December 29, 1936.] THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. CARLOS SOLER Y RODRIGUEZ (alias DANKLIN SOLER), defendantappellant. SYLLABUS 1. CRIMINAL LAW; CONFINEMENT IN A REFORMATORY; CHARACTER OF THE ORDER OF CONFINEMENT. Orders issued for the confinement of a minor in the Philippine Training School for Boys, whatever their number, do not constitute condemnatory prison sentences. 2. ID.; ID.; "PRESO FUGADO"; BENEFITS OF THE INDETERMINATE SENTENCE LAW. Confinement in the Philippine Training School for Boys is not imprisonment, and the minor so confined, who escapes from said institution, does not have the status of a preso fugado (escaped prisoner), and is not excluded from the benefits afforded by the Indeterminate Sentence Law.

12 DECISION This is an appeal taken by the accused Carlos Soler (alias Danklin Soler) from the judgment of the Court of First Instance of Rizal, the dispositive part of which reads: "By virtue of the plea of guilty entered by the accused in open court, the court finds him guilty of theft as provided for and punished in article 309, case 3, of the Revised Penal Code, with the aggravating circumstance of recidivism which is compensated by the mitigating circumstance of the plea of guilty entered by the accused upon arraignment and, consequently, sentences him to the penalty of one year, eight months and twenty-one days of prision correccional, with the accessory penalties provided by law, and to indemnify the offended party Ralph A. McKibben in the sum of P159.60 representing the value of the unrecovered articles, with subsidiary imprisonment in case of insolvency and costs. "As a habitual delinquent, this being his fourth conviction, he is sentenced to the additional penalty of seven years, four months and one day of prision mayor, with the accessory penalties provided by law, in accordance with the provisions of article 62, subsection 5, paragraph (b), of the Revised Penal Code. "It is ordered that the recovered articles be returned to the owner thereof under receipt." The attorney de oficio appointed by this court to defend the defendant-appellant in this instance states in his brief that he has found no error in the appealed judgment and that he is of the opinion that it should be affirmed. The principal penalty of one year, eight months and twenty-one days of prision correccional imposed by the trial court for the crime of theft provided for and punished in article 309, case 3, of the Revised Penal Code and committed by the defendant-appellant with the aggravating circumstance of recidivism compensated by the mitigating circumstance of the plea of guilty entered by the defendant upon arraignment, is in accordance with law. Such is not the case, however, with the additional penalty of seven years, four months and one day of prision mayor and the accessory penalties of the law imposed upon him for being a habitual delinquent under article 62, subsection 5, paragraph (b), of the Revised Penal Code, because inasmuch as he was a minor when he committed two crimes of theft on March 31, 1926, robbery in an inhabited house on November 14, 1927, and qualified theft on May 7, 1928, for which he was ordered confined in the Philippine Training School for Boys until he attained majority, without having passed sentence of conviction against him as it was suspended in accordance with the provision of section 3 of Act No. 3203, and inasmuch as to be a habitual delinquent it is necessary that the defendant be found guilty of any of the crimes of robo, hurto, estafa, or falsificacion a third time or oftener within a period of ten years from the date of his release or last conviction of said crime, the herein defendant- appellant cannot be deemed to be a habitual delinquent, not having ever been convicted of any of said crimes prior to the commission of the crime of theft with which he has been charged and of which he pleaded guilty and was convicted in this case. The fiscal, however, is of the opinion that the herein defendant-appellant is not entitled to enjoy the benefit afforded by Act No. 4103, as amended by Act No. 4225, which establishes indeterminate sentence on the ground that he has twice escaped from the Philippine Training School for Boys where he was confined, in accordance with the provision of section 2 of said Act No. 4103, as amended by section 2 of Act No. 4225.

13

The pertinent part of the Spanish text of section 2 of Act No. 4103, as amended by section 2 of Act No. 4225, reads as follows: "Art. 2.Esta Ley no se aplicara . . . a los presos fugados o a las personas que han evalido el cumplimiento de sentencia; . . ." The pertinent part of the English text of said section reads: SEC. 2. This Act shall not apply . . . to those who shall have escaped from confinement or evaded sentence; . . ." If we are to abide by the Spanish text, the herein defendant-appellant is entitled to the benefit afforded by said Indeterminate Sentence Law. Preso, according to the Enciclopedia Juridica Espaola, volume 25, pade 499, is "The person subjected to imprisonment, either preventively or restrictively." The herein defendantappellant was never sentenced to prison while he was under age but, on the contrary, when he was prosecuted for the above-stated crimes, no sentence of conviction was imposed upon him but all further proceedings were suspended and he was ordered confined in the Philippine Training School for Boys which is not a prison but purely an educational institution. The herein defendant-appellant, therefore, never bore the stigma of a preso and the fact that he had escaped from the Philippine Training School for Boys did not give him the status of a preso fugado (escaped prisoner). If we are to abide by the English translation, said defendant-appellant is not entitled to said benefit as the term "confinemen" means "The state of being confined; restraint within the limits; restraint within doors by sickness . . .: any restraint of liberty by force or other obstacle or necessity; hence imprisonment." (12 Corpus Juris, 422.) Upon being confined in the Philippine Training School for Boys by judicial order, the herein defendant-appellant suffered restraint of liberty by force and in escaping from said institution, he acquired the qualification of "escaped from confinement" which is one of the causes of exclusion under section 2 of Act No. 4103, as amended by Section 2 of Act No. 4225. We are, therefore, confronted with a conflict between two texts - one English and the other Spanish - of the same legal provision, and to solve it we are compelled to resort to a law passed by the Philippine Legislature establishing rules therefor. Section 13 of Act No. 2657, as amended by section 1 of Act No. 2717, provides: "SEC. 13. Language that should prevail in the interpretation of laws. In the interpretation of a law officially promulgated in English and Spanish, the English text shall govern, but in case of ambiguity, omission or mistake, the Spanish may be consulted to explain the English text. The converse rule shall, however, be applied if so provided in the particular statute: Provided, however, That in the interpretation of laws enacted by the Philippine Legislature after October sixteenth, nineteen hundred and sixteen, the language of the text used by the house that finally passed the same shall prevail, and in case of ambiguity, omission or mistake, the official translation filed in the office of the Secretary of said House may be consulted." The records division of the National Assembly informs us that Act No. 4225, amending Act No. 4103, of the Philippine Legislature, was passed in Spanish. Under the above-cited legal provision, the Spanish text of Act No. 4225 should prevail in the interpretation of its provisions. The terms used in the Spanish text of the law in question being presos fugados (escaped prisoners), the said defendant-

14 appellant not having been sentenced to prison by final judgment prior to the commission of the crime of which he is charged herein, and as his confinement in the Philippine Training School for Boys, from which he escaped, cannot be legally considered imprisonment, the exception contained in section 2 of Act No. 4103, as amended by section 2 of Act No. 4225, is not applicable to him. Said defendant-appellant, therefore, is entitled to the enjoyment of the benefit afforded by said Indeterminate Sentence Law. Under section 1 of Act No. 4103, as amended by section 1 of Act No. 4225, the indeterminate sentence to be imposed upon said defendant-appellant should consist of the penalty which, in view of the attending circumstances could be properly imposed under the rules of the Revised Penal Code, as the maximum term, and a penalty within the range of the penalty next lower to that prescribed by said Code for the offense, as the minimum. In this case, the penalty prescribed by article 309, case 3, of the Revised Penal Code for the crime of theft is prision correccional in its minimum and medium periods, or from 6 months and 1 day to 4 years and 2 months. As the presence of the aggravating circumstance of nocturnity compensated by the mitigating circumstance of plea of guilty must be considered, said penalty should be imposed in its medium period, or from 1 year, 8 months and 21 days to 2 years, 11 months and 10 days of prision correccional. The penalty next lower to prision correccional in its minimum and medium periods is arresto mayor in its medium and maximum periods (art. 61, No. 5, of the Revised Penal Code) from which the minimum limit of the indeterminate sentence should be taken. Taking into consideration all the circumstances of the case, we are of the opinion that the minimum of the indeterminate sentence should be fixed at four months and one day of arresto mayor with the maximum of one year, eight months and twenty-one days of prision correccional. In view of the foregoing considerations, we are of the opinion and so hold: (1) That orders issued for the confinement of a minor in the Philippine Training School for Boys, whatever their number, do not constitute condemnatory prison sentences; (2) that confinement in the Philippine Training School for Boys is not imprisonment, and the minor so confined, who escapes from said institution, does not have the status of a preso fugado (escaped prisoner), and is not excluded from the benefits afforded by the Indeterminate Sentence Law. Wherefore, with the modification that the additional penalty for habitual delinquency be eliminated from the appealed sentence, and that the defendantappellant be sentenced to an indeterminate penalty of from four months and one day of arresto mayor to one year, eight months and twenty-one days of prision correccional, it is affirmed in all other respects, with the costs to the appellant. So ordered.

[G.R. No. 48293. April 20, 1942.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LAUREANO GONZALEZ, defendant-appellant. SYLLABUS 1. CRIMINAL LAW AND PROCEDURE; COMPLEX CRIME OF ESTAFA THROUGH FALSIFICATION OF A PUBLIC DOCUMENT; COMPUTATION OF PENALTY NEXT LOWER TO THAT PRESCRIBED BY LAW. The offense charged and admitted by appellant constitutes the complex crime of estafa through falsification of a public document, and comes under No. 4, Article 315, in connection with Article 171, of the Revised Penal Code, the penalty prescribed being, pursuant to Article 48 of the said code, that which is

15 provided for the more serious offense to be applied in its maximum period. The penalty provided for the more serious offense falsification of a public document by a public officer is prision mayor and a fine not to exceed P5,000. Since appellant is entitled to the mitigating circumstances of voluntary surrender and plea of guilty, the penalty next lower to that provided by law should be imposed in accordance with Rule 5, Article 64, of the Revised Penal Code. 2. ID.; ID.; ID. Though, as a general rule, when the penalties prescribed by law are constituted by only one or two periods of divisible penalties, the higher and the lower ones are formed by the same number of periods immediately following, this should not be done when, as in this case, the law prescribes the penalty in connection with another composed of three divisible periods, and the graduation should therefore be made in accordance with Rule 4 of Article 61 of the Revised Penal Code. In the instant case, the penalty provided by law is prision mayor which should be applied in its maximum period, because of the complex nature of the offense charged. There being two mitigating circumstances, the accused is entitled to the penalty next lower in degree. For the purpose of determining the penalty next lower, the penalty that should be considered as a starting point is the whole prision mayor, it being the penalty prescribed by law, and not prision mayor in its maximum period which is only the penalty actually applied because of an attending circumstance. The penalty next lower to prison mayor is prision correccional and this latter penalty should be applied in its maximum because of the circumstance above mentioned. In other words, as has been indicated in the Co Pao case, 58 Phil. 545, the penalty next lower in degree should be determined before imposing it in its maximum, and not the reverse as was done before. 3. ID.; ID.; ID.; INDETERMINATE SENTENCE LAW. Applying the Indeterminate Sentence Law to the accused, the maximum of the penalty to be imposed upon him shall be the maximum period of prision correccional, that is, from 4 years, 2 months and 1 day to 6 years. The minimum of the indeterminate penalty shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Prision correccional is the penalty provided by law for the offense and the penalty next lower is arresto mayor which may be applied in any of its periods in the discretion of the court, taking into account not only the circumstances attending the crime but such other circumstances as are material for the determination of a penalty adequate to the peculiar situation of the accused. DECISION Appellant, Laureano Gonzalez, was charged in the Court of First Instance of Manila with the crime of estafa through falsification of a public document. The information alleges that on or about the 9th of November 1940, appellant, as a laborer in the Department of Labor with the duty of running errands, with intent to defraud the Government of the Commonwealth, forged and falsified a public document, which is a reimbursement expense receipt, by preparing the said receipt and writing thereon the signature of Enrique Corpus, chief of the property section of the Department of Labor, making it appear that he officially incurred a transportation expense in the amount of sixty centavos (P0.60) which he claimed to have advanced from his personal funds, when, as a matter of fact he did not incur any such expense, and that Enrique Corpus never approved nor signed said receipt; that appellant thereafter wrote on the forged document his own signature and that of said Enrique Corpus and presented it to Gabriel Nazareno, cashier and disbursing officer, for payment and said cashier did pay; and that the accused misappropriated the amount for his own personal use.

16 Upon arraignment, defendant pleaded guilty and was sentenced by the trial court to an indeterminate penalty of 6 years and 1 day to 8 years and 1 day of prision mayor, to pay a fine of P100 and to indemnify the Government in the sum of sixty centavos (P0.60). From this judgment he appealed to this Court questioning the propriety of the penalty imposed upon him. The offense charged and admitted by appellant constitutes the complex crime of estafa through falsification of a public document, and comes under No. 4, Article 315, in connection with Article 171, of the Revised Penal Code, the penalty prescribed being, pursuant to Article 48 of the said code, that which is provided for the more serious offense to be applied in its maximum period. The penalty provided for the more serious offense falsification of a public document by a public officer is prision mayor and a fine not to exceed P5,000. Since appellant is entitled to the mitigating circumstances of voluntary surrender and plea of guilty, the penalty next lower to that provided by law should be imposed in accordance with Rule 5, Article 64, of the Revised Penal Code. But what is the penalty next lower to prision mayor when the latter is to be applied in its maximum period? There are two prevailing theories on this matter: (1) that the penalty next lower in degree should be prision mayor in its medium period, and (2) that it should be prision correccional in its maximum period. The second theory was laid down by this Court in U. S. vs. Fuentes, 4 Phil. 404, but it was later abandoned in People vs. Co-Pao, 58 Phil. 545, and People vs. Haloot, 37 Off. Gaz. 2901, wherein the first theory was adopted as a rule. By stare decisis this Court has been consistently following the first theory, but due to special circumstances brought to our attention we have assented to reopen the question and consider anew all the reasons advanced in favor of the one and the other theory. There can be no doubt that the penalty next lower to another should begin where the latter ends, because, otherwise, if it were to skip over intermediate ones, it would be lower, but not the next lower, in degree. Thus if, for instance, the penalty provided by law is the maximum of prision mayor, the penalty next lower cannot be the maximum of prision correccional, because we would be jumping over the intermediate penalties of prision mayor, minimum and medium. According to Rule 4, Article 61, of the Revised Penal Code, when the penalty prescribed by law is constituted by three periods of a divisible penalty, the higher and the lower ones must be formed by the same number of periods immediately following. And, by analogy, when the penalty prescribed by law is constituted by only one or two periods of a divisible penalty, the higher and the lower ones are formed also by the same number of periods immediately following, according to Rule 5, Article 61, of the same code. There is no difficulty in the application of the rule where the penalty provided by law is clearly one period of a divisible penalty. The difficulty arises when the law, upon fixing the penalty for a felony, prescribes one composed of three periods to be applied in only one of them by reason of attending circumstances. For instance, in a robbery case, when the offender does not carry arms and the value of the property taken does not exceed P250, the penalty should be prision correccional in its medium period to prision mayor in its minimum period to be applied in its minimum period, according to the penultimate paragraph of Article 299 of the Revised Penal Code. It may be said that the penalty provided by law in this instance is the medium period of prision correccional, a penalty that is complete for it has its three periods, and its limits cannot be exceeded whatever and however numerous the aggravating circumstances present in the crime may be. On the other hand, if we say that in this case the penalty next lower in degree to prision correccional in its medium period is prision correccional in its minimum

17 period, the result would be that the penalty for the crime is heavier than the penalty provided for a more serious crime, such as robbery of property of the same value but committed with arms, because in this last crime the penalty to be applied according to the Indeterminate Sentence Law is arresto mayor in its medium period to prision correccional in its minimum period, which is lighter than prision correccional in its minimum period. Should this theory be allowed to prevail, other anomalies would happen, as, for instance, that the author of a frustrated crime of robbery in an inhabited house involving an amount not exceeding P250 would, under the same conditions, have to be punished with a penalty lighter than that of a person directly responsible for a similar offense involving a lesser amount. Again, prision mayor in its minimum period is a lighter penalty than prision mayor in its full extent, and yet the penalty next lower to the former is heavier than the penalty next lower to the latter. Prision mayor in its maximum degree is a graver penalty than prision mayor in its full extent, and yet the penalty next higher to the former is lighter than the penalty next higher to the latter. Viada, commenting on this matter, says: "Cul es la pena inmediatamente inferior en grado que deber aplicarse, con sujecion a los arts. 66 y 68, prrafo segundo del 86, al autor del delito frustrado, al complice del consumado y al mayor de quince aos y al menor de diez y ocho autor del delito consumado de robo sin armas y por valor que no excede de 500 pesetas? En na sola Sentencia del Tribunal Supremo (la de 13 de Junio de 1872, publicada en la Gaceta de 30 de Julio) se declaro que esa pena inferior era la de presidio correccional en su grado mnimo. (Vease el considerando 2. de la citada Sentencia.) Esta resolucion, empero, que fu dictada contra el parecer del Ministerio Fiscal, no ha prevalecido. A haber sido constante esta Jurisprudencia, hubiera resultado la notoria injusticia de que al autor de un delito frustado de robo, sin armas, por valor mayor de 500 pesetas, se le aplicaria el arresto mayor grado medio, concurriendo una circunstancia atenuante; el grado mximo del propio arresto mayor, no concurriendo circunstancias atenuantes ni agravantes, y el presidio correccional grado minimo, solo cuando concurriesen una o ms agravantes; mientras que al autor del mismo delito frustrado de robo, sin armas, pero por valor menor de 500 pesetas, es decir, de un delito menos grave que aquel, se le habra de imponer siempre la pena dentro de los limites del presidio correccional en su grado minimo. Y fue tanto mas de extraar la antedicha resolucion, cuando en otras anteriores Sentencias (notoriamente la de 18 de Marzo de 1872, publicada en la Gaceta de 2 de Abril) se habia declarado ya que esa pena inmediatamente inferior aplicable, con arreglo al art. 86, al mayor de quince aos y menor de diez y ocho, autor del delito consumado de robo de que se trata (y por consiguiente al complice del propio delito y al autor del frustrado, a quienes corresponde como a aquel la pena inmediatamente inferior), era la de arresto mayor en su grado medio, como minimo de la pena (vase el penultimo considerando de dicha ultima Sentencia). Felizmente, reconociendo el Tribunal Supremo el error cometido en la Sentencia de 13 de Junio de 1872, ha vuelto a la primera resolucion (la de 18 de Marzo de 1872) en mas de veinte fallos posteriores al de 13 de Junio antedicho. (Vase, entre otras las Sentencias de 5 de Julio de 1872, Gaceta de 11 de Agosto; 26 de Septiembre de 1872, Gaceta de 10 de Octubre; 15 de Octubre de 1872, Gaceta de 19 de Noviembre; 20 de Diciembre de 1872, Gaceta de 16 de Febrero de 1873, etc.) "En todas ellas se ha declarado que la pena inmediatamente inferior en grado, asi del mayor de quince aos y menor de diez y ocho, como del autor del delito frustrado y complice del consumado, cuando se trata del robo sin armas y que no excede de 500 pesetas, es la de arresto mayor en su grado medio a presidio correccional en su grado minimo, debiendo imponerse al culpable el arresto

18 mayor en su grado medio (dos meses y un dia a cuatro meses), que es el minimo de la pena." (3 Viada, pp. 394-395.) In the construction of laws absurdities should be avoided if possible. And the absurdities above indicated may be avoided if we hold, as we do hold now that though, as a general rule, when the penalties prescribed by law are constituted by only one or two periods of divisible penalties, the higher and the lower ones are formed by the same number of periods immediately following, this should not be done when, as in this case, the law prescribes the penalty in connection with another composed of three divisible periods, and the graduation should therefore be made in accordance with Rule 4 of Article 61 of the Revised Penal Code. (Decision of the Supreme Court of Spain of Jan. 4, 1887.). In the instant case, the penalty provided by law is prision mayor which should be applied in its maximum period, because of the complex nature of the offense charged. There being two mitigating circumstances, the accused is entitled to the penalty next lower in degree. For the purpose of determining the penalty next lower, the penalty that should be considered as a starting point is the whole prision mayor, it being the penalty prescribed by law, and not prision mayor in its maximum period which is only the penalty actually applied because of an attending circumstance. The penalty next lower to prision mayor is prision correccional and this latter penalty should be applied in its maximum because of the circumstance above mentioned. In other words, as we have indicated in the Co-Pao case (58 Phil. 545), the penalty next lower in degree should be determined before imposing it in its maximum, and not the reverse as was done before. This rule is, however, criticized by this Court in People vs. Haloot, 37 Off. Gaz., 2901, in that it may give "rise to the same anomaly where the prescribed penalty, instead of being the minimum, is the maximum of prision correccional in its medium period to prision mayor in its minimum period, that is, prision mayor in its minimum period, for the reason that the crime was committed in an uninhabited place and by a band (Art. 300, Rev. Pen. Code), inasmuch as in such case the penalty next lower in degree . . . would be prision correccional in its minimum period, and the same penalty, as the one next lower in degree, would be imposed if the crime were lighter, not having been committed in an uninhabited place and by a band, if aggravating circumstances were present without any mitigating circumstances, which anomaly would consist in the punishment of the crime with the same penalty both when it is more serious and when it is lighter." This reasoning seems to lie on the erroneous theory that for purposes of the Indeterminate Sentence Law the penalty which is taken as the starting point in determining the next lower is the penalty actually imposed after considering all the circumstances modifying liability. According to section 1 of Act No. 4225, the minimum of the indeterminate penalty "shall be within the range of the penalty next lower to that prescribed by the Code for the offense" and the penalty for each offense is provided by the Code without regard to circumstances modifying criminal liability. In other words, for purposes of the Indeterminate Sentence Law, the penalty next lower should be determined without regard as to whether the basic penalty provided by the Code should be applied in its maximum or minimum period as circumstances modifying liability may require. When, however and this may be the only exception to the rule - the number of mitigating circumstances is such as to entitle the accused to the penalty next lower in degree, this penalty, in the application of the Indeterminate Sentence Law, should be taken as the starting point for the determination of the penalty next lower. Applying the Indeterminate Sentence Law to the accused, the maximum of the penalty to be imposed upon him shall be the maximum period of prision

19 correccional that is, from 4 years, 2 months and 1 day to 6 years. The minimum of the indeterminate penalty shall be within the range of the penalty next lower to that prescribed by the Code for the offense. Prision correccional is the penalty provided by law for the offense and the penalty next lower is arresto mayor which may be applied in any of its periods in the discretion of the court, taking into account not only the circumstances attending the crime but such other circumstances as are material for the determination of a penalty adequate to the peculiar situation of the accused. As we have said in People vs. Ducosin, 59 Phil. 109, 117-118, "keeping in mind the basic purpose of the Indeterminate Sentence Law 'to uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness' . . . it is necessary to consider the criminal, first, as an individual and, second, as a member of society. This opens up an almost limitless field of investigation and study which it is the duty of the court to explore in each case as far as is humanly possible, with the end in view that penalties shall not be standardized but fitted as far as is possible to the individual, with due regard to the imperative necessity of protecting the social order." The law provides also for the offense charged a fine not exceeding P5,000. The judgment is accordingly modified and the appellant sentenced to an indeterminate penalty of 1 month and 1 day of arresto mayor to 4 years, 2 months and 1 day of prision correccional, and a fine of P100 with subsidiary imprisonment in case of insolvency, to indemnify the Government in the sum of P0.60, also with subsidiary imprisonment in case of insolvency, without costs in this instance.

[G.R. No. 48801. August 28, 1942.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCELO LAREZA, ET AL., defendants-appellants. SYLLABUS 1. CRIMINAL LAW AND PROCEDURE; ROBBERY; SUFFICIENCY OF INFORMATION. The allegation "by passing through a hole on the ceiling of said bazar, an opening not intended for entrance or egress" is sufficient, and the omission of an allegation of violence or intimidation against persons or of force upon things, is not fatal to the prosecution for robbery. 2. ID.; ID.; ID. Article 302 of the Revised Penal Code is complete in itself. An information based upon it need not specifically allege violence, intimidation or force as required in article 293, it being sufficient that any of the five methods enumerated in said article 302 is averred. Each of these five ways implies either force or its equivalent. Paragraphs 2, 4 and 5 relative to the breaking of walls, doors and closed receptacles, respectively, include the use of actual force, while paragraphs 1 and 3 refer to an element that is tantamount to actual force and takes the place of actual force. In other words, entrance through an opening not intended for entrance or egress (par. 1) or by the use of false keys, picklocks or similar tools (par. 3) is deemed by the legislator to have the same effect as the actual breaking of any wall or door. And the drafters of the Revised Penal Code must have seen that the perversity and the public danger in paragraphs 1 and 3 is no less than in the other paragraphs. 3. ID.; ID.; PLEA OF GUILTY OFFSETS THE CRIME BEING COMMITTED ON THE OCCASION OF WAR; INDETERMINATE

20 PENALTY; RETURN OF STOLEN PROPERTY TO THE OWNER. The defendants' plea of guilty offsets the aggravating circumstance that the crime was committed on the occasion of war. In accordance with the Indeterminate Sentence Law, each of the accused should be sentenced to an indeterminate penalty of three months of arresto mayor to one year and eight months of prision correccional. The things carried away by the appellants should also be returned to the owner thereof.

[G.R. No. 48896. December 29, 1943.] JOSE O. LONTOC, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent. SYLLABUS 1. ESTAFA THRU FALSIFICATION OF PUBLIC DOCUMENT; EVIDENCE; PROOF THAT MONEY WAS PAID TO OR ACTUALLY RECEIVED BY ACCUSED, UNNECESSARY. It was not necessary for the prosecution to prove that the money was paid to or actually received by the accused. From the finding that the accused falsified the pay roll, by which means the money in question was procured to be paid to one who was not entitled to receive it, no other conclusion can be drawn than that arrived at by the Court of Appeals, namely, that he is a principal in the defraudation. 2. ID.; INDETERMINATE SENTENCE; PENALTY NEXT LOWER IN DEGREE; DISPARITY BETWEEN PETTINESS OF AMOUNT MALVERSED AND SEVERITY OF MINIMUM PENALTY. In determining the penalty next lower in degree for the purpose of applying the Indeterminate Sentence Law, the Court of Appeals disregarded the ruling of this Court in the case of People vs. Gonzales (Apr. 20, 1942), G. R. No. 48293, 1 Off. Gaz., 297. We deem it unnecessary to re-examine the correctness of that ruling which, the present writer believes, has been lucidly and amply demonstrated by the opinion penned by Mr. Justice Moran in that case. We may, however, take this opportunity to observe that aside from its correctness, its wisdom and justice are demonstrated by its application to the instant case. Were the contrary theory, or that applied by the Court of Appeals, to be followed, an enormous and notorious disparity between the pettiness of the amount malversed (P10) and the severity of the minimum penalty imposed by the Court of Appeals (eight years and one day) would result, which would shock the average man's sense of justice; whereas, under our ruling in the Gonzales case the court is given wide latitude in fixing the minimum and the maximum penalties to be imposed to suit the facts and circumstances of each particular case and thereby more fully satisfy the behests of justice. Adhering to our ruling in that case, we find that the maximum of the indeterminate penalty that should be imposed against the petitioner should be within the maximum period of prision mayor, which ranges from ten years and one day to twelve years, and the minimum should be within that next lower in degree to prision mayor, namely, prision correccional, which ranges from six months and one day to six years. 3. CRIMINAL LAW AND PROCEDURE; CONVICTION BY COURT OF APPEALS OF HIGHER OFFENSE. We find that the decision of the Court of Appeals convicting the petitioner of the higher offense with which he was charged in the Court of First Instance is in accordance with the ruling laid down by this Court in a long line of decisions, from U. S. vs. Abijan, 1 Phil., 83, to People vs. Olfindo, 47 Phil., 1, which has been embodied in statutory form in section 11 of Rule 120. The reason behind this rule is that when an accused appeals from the sentence of the trial court, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court,

21 which is then called upon to render such judgment as law and justice dictate, whether favorable or unfavorable to the appellant. This rule is too well known for any lawyer to ignore. DECISION La codicia rompe el saco. Naghagad ng karakot, nawalan ng isang salop. The poignant verity of these Spanish and Filipino proverbs is doubly felt by the petitioner. (1) As foreman-timekeeper in the construction of the CarmonaDasmarias Road, he was accused of having unlawfully enriched himself by P10 thru falsification of the pay roll; or, in the language of the Penal Code, he committed the complex crime of estafa thru falsification of a public document. The Court of First Instance of Cavite found him guilty only of falsification thru reckless imprudence and sentenced him to suffer four months and one day of arresto mayor. (2) Not satisfied with that light sentence he appealed, and the Court of Appeals after reviewing the evidence found him guilty of the original charge and sentenced him to an indeterminate penalty of from eight years and one day to ten years, eight months, and one day of prision mayor and to pay a fine of P200 and the costs. The case is now before us on certiorari to review the judgment of the Court of Appeals. The findings of that court, penned by Justice Bengson and concurred in by Justices Lopez-Vito, Montemayor, and Zulueta, read as follows: "The People's evidence showed that during the months of March and April, 1939, the accused was foreman and timekeeper in the construction of the road CarmonaDasmarias, and as such was in charge of the daily time book for laborers and of the preparation of the corresponding pay roll; that in the pay roll Exhibit A prepared by him for the period March 20 to March 31, 1939, the name of Elias Sio appears as having worked daily thereon from March 20 to March 30, 1939, at the rate of one peso a day; that one Elias Sio was paid P10, and signed at the corresponding place in the pay roll, his signature being identified by Sofronio Bayla; that Sofronio Bayla did not know the person who so signed and took the money, but he (Bayla) was caused by defendant Jose O. Lontoc to countersign the pay roll so that the person who appeared as Sio may be paid; that the real Elias Sio never worked in the said public work, and has not received the amount of P10. "In the lower court, the accused admitted that in preparing Exhibit A, he well knew that Elias Sio never worked as laborer on the road. He alleged, however, that he included Sio's name in said pay roll upon orders of Sofronio Bayla (who was his superior, being the superintendent), under the following circumstances: Bayla engaged the truck of one Bernardo Ebron to carry earth from the Bancal River to the culvert at station 7-800 of the Carmona-Dasmarias road at the rate of one peso per trip; the truck made ten trips with Angel Sarmiento and Elias Sio as helpers; however, payment for Ebron's services could not be made by means of a voucher, because the District Engineer would disapprove it inasmuch as the truck had no license for 1939; so Bayla conceived the device of putting Sio on the pay roll to make the payment to Bernardo Ebron. "Bayla denied defendant's version; and the lower court discredited it, not only because there was no reason for Bayla to order such a dubious arrangement, for he could have hired another truck properly registered, but also because it appeared that Sio was a townmate and compadre of Lontok, and it was the latter who was more interested to pay him, and not Bayla to whom Sio was a complete stranger.

22 We are inclined to agree with the trial judge, for the additional reason that if the facts had occurred as defendant related, he should have included the name of Bernardo Ebron in the pay roll instead of Elias Sio. Furthermore, Elias Sio himself swore that he never received the money which is a positive indication that someone in connivance with the accused posed as Elias Sio to get the wages and defraud the Government. And this leads us to disagree when His Honor says that the accused may not be convicted of estafa. Defendant must have received part, at least, of the amount in consideration for his active participation in the swindle. He knew the falsity, he presented a man who posed as Sio to Bayla, and induced the latter to identify the impostor as Sio. He is a principal in the defraudation. "As to the falsification, there can be no doubt of appellant's guilt. And not being so inexperienced, as he would like us to believe, for it appears that he has already been convicted of a similar offense, he should be sentenced for falsification of public document, plain and simple, not through reckless imprudence. He could not plead mere negligence, for the pay roll bears this certification in his handwriting and above his signature: "I hereby certify that the above laborers have rendered services in laying the concrete pipe culverts on station 7-800 and cementing the joint of the culverts and wing head wall on station 7-400 and repair and const. of temporary bridge over Embarcadero river and Paliparan road." Counsel for the petitioner makes a heroic attempt to persuade us to review the evidence, reverse the findings of fact of the Court of Appeals, and declare his client innocent. That, counsel ought to know, we are powerless to do; for, under the law, in a case brought to us on certiorari like this, the findings of fact made by the Court of Appeals are final and conclusive. It is contended that the petitioner cannot be held to have committed estafa because the Court of Appeals itself did not expressly find that he had actually received the P10 in question but merely said that "defendant must have received part, at least, of the amount in consideration for his active participation in the swindle. He knew the falsity, he presented a man who posed as Sio to Bayla, and induced the latter to identify the impostor as Sio. He is a principal in the defraudation." We think the appellate court's conclusion of law upon this point is correct. It was not necessary for the prosecution to prove that the money was paid to or actually received by the accused. From the finding that the accused falsified the pay roll, by which means the money in question was procured to be paid to one who was not entitled to receive it, no other conclusion can be drawn than that arrived at by the Court of Appeals, namely, that he is a principal in the defraudation. This leads us to the main question of law involved in this case: Could the Court of Appeals legally find the appellant guilty of estafa thru falsification of a public document as originally charged against him after the lower court had found him guilty only of falsification thru reckless imprudence, thereby acquitting him of estafa? Counsel for the petitioner maintains the negative and cites section 10 of Rule 120 of the Rules of Court; the case of People vs. Abellera, G.R. No. 46747 (Feb. 24, 1940); and People vs. Orfida, G.R. No. 46877 (Feb. 27, 1940). Section 10 of Rule 120 reads as follows: "Sec. 10. When judgment not to be reversed or modified. No judgment shall be reversed or modified unless the appellate court after an examination of all

23 the appeal papers is of the opinion that error was committed which injuriously affected the substantial rights of the appellant." From this, petitioner argues that if the error committed by the trial court did not injuriously affect his substantial rights, the Court of Appeals could not reverse or modify it unless the reversal or modification would favor the appellant; and, he adds, "conversely, if the error is favorable to the appellant, there is no ground for the Court of Appeals to modify or reverse such judgment." The argument is specious; and the petitioner has seen only one side of the medal that referring to the reversal or modification in favor of the appellant. The other side of the medal that referring to the reversal or modification adverse to the appellant is the following section 11 of the same rule:. "Sec. 11. Power of appellate court on appeal. Upon appeal from a judgment of the Court of First Instance, the appellate court may reverse, affirm, or modify the judgment and increase or reduce the penalty imposed by the trial court, remand the case to the Court of First Instance for new trial or re-trial, or dismiss the case." That and not section 10 is the provision of law applicable to this case. The cases of Abellera and Orfida are different from the instant case. In the first case Abellera was accused of infidelity in the custody of ballot boxes but was acquitted by the trial court. However, in acquitting him the judge took occasion to reprimand him for misconduct as Clerk of Court, consisting of misreading some ballots during the hearing of the election case to favor one of the contestants, and of accepting free transportation and meals from one of the litigants. He appealed from that part of the decision reprimanding him, and the fiscal also filed a notice of appeal from the judgment of acquittal. After the Solicitor General had filed his brief for the People as appellant, the Court, upon motion of counsel for the accused, rejected it and ordered it returned on the ground that under the cases of Kepner vs. U. S., 195 U.S., 100, and others the Government has no right to appeal from a judgment of acquittal. In deciding the case on the merit, the Court reiterated that ruling and refused to consider the plea of the Solicitor General to review the case and convict the appellant of the crime charged. It will at once be noted that in that case the accused was entirely acquitted by the trial court of the crime charged, whereas in the instant case the accused was convicted by the trial court of a lesser offense included within the original charge; and there the appeal of the accused was from a portion of the sentence which had no relation to the offense for which he was prosecuted, while here the appeal of the accused is from the judgment of conviction of a lesser offense which was included within the higher offense for which he was prosecuted. In the second case, Francisco Orfida was prosecuted for malversation of public funds thru falsification of public documents. The trial court found him guilty only of malversation, and the Court of Appeals affirmed that judgment, disregarding the contention of the Solicitor General for the appellee that the appellant was guilty of the complex crime charged against him. From the confirmatory judgment of the Court of Appeals the Solicitor General appealed by certiorari to this Court, but the latter maintained the ruling that the Government has no right to appeal from the judgment of acquittal. That is obviously not the present case. Even assuming that there the Court of Appeals erred in not sustaining the Solicitor General's contention that the appellant could and should be held guilty of the higher offense originally charged against him, it was not within the power of this Court to correct such error thru an appeal by the Government, because it maintained that such an appeal did not lie.

24 We find that the decision of the Court of Appeals convicting the petitioner of the higher offense with which he was charged in the Court of First Instance is in accordance with the ruling laid down by this Court in a long line of decisions, from U. S. vs. Abijan, 1 Phil., 83, to People vs. Olfindo, 47 Phil., 1, which has been embodied in statutory form in section 11 of Rule 120 above quoted. The reason behind this rule is that when an accused appeals from the sentence of the trial court, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate, whether favorable or unfavorable to the appellant. This rule is too well known for any lawyer to ignore. But if the numerous cases wherein this Court has convicted the appellants of a higher offense or has increased the penalty imposed on them by the trial court, have not been seen by some lawyers for accused-appellants as a red light indicative of danger or risk, let the bitter experience of the herein petitioner serve as a perpetual reminder to others to heed the moral lesson of the proverbs with which this opinion is prefaced. There is, however, an error committed by the Court of Appeals prejudicial to the petitioner, which though not assigned by the latter we are bound to correct as a matter of justice; and that is the penalty imposed by said court for the offense of estafa thru falsification of a public document. The penalty prescribed by law for that offense is prision mayor to be applied in its maximum period plus a fine not to exceed P5,000. (Article 315, case No. 4, in connection with articles 171 and 48 of the Revised Penal Code.) In determining the penalty next lower in degree for the purpose of applying the Indeterminate Sentence Law, the Court of Appeals disregarded the ruling of this Court in the case of People vs. Gonzales (Apr. 20, 1942), G.R. No. 48293, 1 Off. Gaz., 297. We deem it unnecessary to re- examine the correctness of that ruling, which, the present writer believes, has been lucidly and amply demonstrated by the opinion penned by Mr. Justice Moran in that case. We may, however, take this opportunity to observe that aside from its correctness, its wisdom and justice are demonstrated by its application to the instant case. Were the contrary theory, or that applied by the Court of Appeals, to be followed, an enormous and notorious disparity between the pettiness of the amount malversed (P10) and the severity of the minimum penalty imposed by the Court of Appeals (eight years and one day) would result, which would shock the average man's sense of justice; whereas under our ruling in the Gonzales case the court is given wide latitude in fixing the minimum and the maximum penalties to be imposed to suit the facts and circumstances of each particular case and thereby more fully satisfy the behests of justice. Adhering to our ruling in that case, we find that the maximum of the indeterminate penalty that should be imposed against the petitioner should be within the maximum period of prision mayor, which ranges from ten years and one day to twelve years, and the minimum should be within that next lower in degree to prision mayor, namely, prision correccional, which ranges from six months and one day to six years. Wherefore, the sentence of the Court of Appeals with regard to the fine (P200) is affirmed; but it is modified with regard to the term of the indeterminate sentence, which is hereby reduced as follows: minimum, six months and one day of prision correccional; maximum, ten years and one day of prision mayor. No pronouncement as to costs in this instance.

25 [G.R. No. L-81. January 7, 1947.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO MAPE, defendant-appellant. SYLLABUS 1. CRIMINAL. LAW; ROBBERY; INDETERMINATE SENTENCE; NEXT LOWER PENALTY, HOW DETERMINED; CASE AT BAR. For purposes of the Indeterminate Sentence Law, the penalty next lower should be determined without regard as to whether the basic penalty provided by the Code should be applied in its maximum or minimum period as circumstances modifying liability may require. (People vs. Gonzalez, 73 Phil., 549. In the instant case, prescinding from the circumstances modifying criminal liability which are the fact that the offender did not carry arms and amount taken was less than 250 pesos, and the aggravating circumstance of nocturnity, the basic penalty under article 229 of the Revised Penal Code would be that "prescribed in the two next preceding paragraphs," namely, prision correccional medium to prision mayor minimum. It is from this basic penalty that the penalty next lower in degree must be computed. In accordance with section 4, article 61, of the Code, this penalty next lower would be arresto mayor medium to prision correccional minimum, from within the range of which the minimum of the penalty in this case must be taken for purposes of Indeterminate Sentence Law. DECISION MORAN, C.J p: This is an appeal from a judgment of the Court of First Instance of Manila convicting the herein appellant of the crime of robbery and imposing an indeterminate sentence of not less than two years, four months and one day of prision correccional, nor more than eight years and one day of prision mayor, to indemnify Gen. J. T. Smith, one of the offended parties in the sum of P117, with subsidiary imprisonment in case of insolvency, and to pay one-half of the costs. On August 7, 1945, at about 3 o'clock a. m., appellant Antonio Mape and a companion whom he named as Andres Salas (still unapprehended), entered the house occupied by Brigadier-General J. T. Smith and Lt. W. Gallows at No. 47 Gilmore street, Quezon City, by breaking through the wire screen of the kitchen door. Once inside the house, appellant Mape went into the room occupied by Lieutenant Gallows, while Salas entered another. Just as appellant was leaving the room of Lieutenant Gallows, the latter, who was then in bed but awake, pursued and caught him. General Smith then came and helped Lieutenant Gallows in subduing appellant. When the police arrived, upon call, they found in appellant's possession a wallet valued at P5, a fountain pen valued at P15, and P100 in cash, all belonging to Lieutenant Gallows. Meanwhile, appellant's companion had escaped and from Gen. Smith's room there were missing a wrist watch valued at P100 and a Parker fountain pen valued at P17. Appellant alleges drunkenness as a defense, claiming that his companion Salas made him drunk prior to their going to the house of the offended parties. This uncorroborated statement of appellant reveals itself clearly as an attempt to tinge with truth his allegation that his nocturnal visit had for its purpose a purely business transaction. The fact, however, that the stolen articles including the amount of P100 belonging to Lieutenant Gallows were found in his possession immediately after his apprehension within the house itself and at the unusual hour of 3 o'clock a. m., discredits this unsupported defense. The records of the case prove appellant's guilt beyond reasonable doubt.

26 The crime having been committed at night time, the aggravating circumstance of nocturnity enters into consideration. The mitigating circumstance of drunkenness not having been creditably established, cannot serve to offset the aggravating circumstance of nocturnity The applicable portion of article 299 of the Revised Penal Code reads: "When said offenders do not carry arms and the value of the property take from does not exceed 250 pesos, they shall suffer the penalty prescribed in the two next preceding paragraph, in the minimum period." The penalty prescribed in the "two next preceding paragraphs" is the next lower in degree to prision mayor in its medium period to reclusion temporal in its minimum period, which would be prision correccional medium to prision mayor minimum. The minimum of this, namely, prision correccional medium, is the penalty in cases where the offenders do not carry arms and the property taken does not exceed 250 pesos, as in the instant case. Due to the presence of one aggravating circumstances nocturnity this penalty of prision correccional medium must be applied in its maximum period as provided for in section 3 of article 64. After dividing prision correccional medium into three periods, its maximum period would be 3 years, 6 months and 21 days to 4 years and 2 months. The minimum of the penalty in this case must be computed in connection with the Indeterminate Sentence Law which provides in its section 1, that the minimum of the indeterminate penalty "shall be within the range of the penalty next lower to that prescribed by the Code for the offense." For purposes of the Indeterminate Sentence Law, the penalty next lower should be determined without regard as to whether the basic penalty provided by the Code should be applied in its maximum or minimum period as circumstances modifying liability may require. (People vs. Gonzalez, 73 Phil., 549). In the instant case, prescinding from the circumstances modifying criminal liability which are the fact that the offender did not carry arms; and the amount taken was less than 260 pesos, and the aggravating circumstance of nocturnity, the basic penalty would be that "prescribed in the two next preceding paragraphs," namely, prision correccional medium to prision mayor minimum. It is from this basic penalty that the penalty next lower in degree must be computed. In accordance with section 4, article 61, of the Code, this penalty next lower would be arresto mayor medium to prision correccional minimum, from within the range of which the minimum of the penalty in this ease must be taken for purposes of the Indeterminate Sentence Law. Judgment is accordingly modified and appellant is sentenced to the indeterminate penalty of 2 months and 1 day to 4 years and 2 months. In all other respects, the judgment appealed from is affirmed, with costs.

[G.R. No. L-1352. April 30, 1947.] ALFONSO MONTEBON, ET AL., petitioners, vs. THE DIRECTOR OF PRISONS, ET AL., respondents. SYLLABUS 1. HABEAS CORPUS; "RES JUDICATA," APPLICABILITY OF. Res judicata as an inflexible doctrine has been held not to apply in habeas corpus proceedings. Still the court in the exercise of a sound judicial discretion, it has also been held, may give controlling weight to the prior refusal.

27 2. INTERNATIONAL LAW; MILITARY OCCUPATION; LAWMAKING FUNCTION, HOW EXERCISED BY OCCUPANT. For most purposes the government of the occupant is likely to exercise the lawmaking function through decrees or regulations emanating from a military source; and these become as effective in operation as though they were expressed in statutory enactments. As a matter of practical expediency the occupant may be dispossed to utilize certain existing agencies of that government and to suspend the operation of others. 3. ID.; ID.; ID.; MUNICIPAL LAWS NOT ABROGATED. Municipal laws as contra-distinguished from laws of political nature, are not abrogated by a change of sovereignty. 4. ID.; ID.; ID.; ID.; INDETERMINATE SENTENCE LAW NOT POLITICAL. The Indeterminate Sentence Law is not a political law. It does not affect political relations. In fact, it is a part of the Commonwealth's criminal and penal system directly related to the punishment of crime and the maintenance of public peace and order which Article 43 of Section III of the Hague Regulations of 1907 compels the belligerent occupant to take all steps in his power to reestablish and insure as far as possible. 5. ID.; ID.; ID.; ID.; ID.; VALIDITY OF ACTS OF "DE FACTO" GOVERNMENT AFTER REOCCUPATION BY LEGITIMATE GOVERNMENT. It is a legal truism in political and international law that all acts and proceedings of the legislative, executive and judicial departments of a de facto government are good and valid and in consonance with the theory of jus postliminii in international law, such, acts and proceedings remain good and valid after the liberation or reoccupation by the legitimate government or sovereigrnty. DECISION This is a petition for habeas corpus by Alfonso Montebon on behalf of Elpidio S. Cruz, a prisoner at the Iwahig Penal Colony. A similar petition was filed with this Court by Felicisima Santiago in the name of the same prisoner (Santiago vs. Director of Prisons, 77 Phil., 927), a petition which was denied by us in a decision promulgated on January 30, 1947. The ground of the first petition was the alleged illegality of one of the prisoner's three convictions for estafa. The present application contests the validity of the prisoner's recommitment decreed by the Commissions of Justice of the Philippine Executive Commission under date of June 3, 1943, for the unexpired portion of his (prisoner's) maximum aggregate sentences in three cases in which he had been paroled by the Board of Indeterminate Sentence on June 26, 1941, when he still had over five years to serve. The Commissioner of Justice's recommitment order was made by virtue of Administrative Order No. 21, dated June 21, 1942, and approved by the Chairman of the Executive Commission, which read: "' The Board of Indeterminate Sentence and the Board of Paradons having been abolished, the powers, duties and functions thereof shall henceforth be assumed and exercised by the Commissioner of Justice." The petitioner does not reveal the nature of his interest in the prisoner's incarceration, or what relation, if any, he has with him. As to the effect on this case of our decision on the first application, res judicata as an inflexible doctrine has been held not to apply in habeas corpus proceedings. Still the court in the exercise of a sound judicial discretion, it has also been held, may give controlling weight to the prior refusal. Such discretion was used against the petitioner in Wong Doo vs. United States (68 Law. ed., 241), on the ground that the petitioner had full opportunity to offer in the first case proof on the point he raised in the second. By a similar criterion and reasoning, that principle might be brought into

28 play here. No reason whatever is shown why the petitioner did not question in the first petition the legality of the recommitment order of the Commissioner of Justice. Nevertheless, we choose not to dispose of this application on a point of procedural technicality, but will decide it on the merits. The authority of the Commissioner of Justice under the then existing government, laws, and military, executive and administrative orders, to take over the powers, functions and duties of the Board of Indeterminate Sentence, is beyond dispute. In an international sense it matters not how the Commissioner of Justice was vested with that authority. For most purposes the government of the occupant is likely to exercise the lawmaking function through decrees or regulations emanating from a military source; and these become as effective in operation as though they were expressed in statutory enactments. As a matter of practical expediency the occupant may be disposed to utilize certain existing agencies of that avernment and to suspend the operation of others. (III ,. Hyde, International Law, 2d ed., 1883.) This Court has held that the Philippine Executive Commission was a de facto government, in Co Kim Cham vs. Valdes Tan Keh and Dizon (75 Phil., 113). As to whether the Indeterminate Sentence Act was in force during the occupation, the answer is in the affirmative. A proclamation of the Commander-in-Chief of the Japanese forces of January 2, 1942, directed that "so far as the military administration permits, all the laws now in force in the Commonwealth, as well as executive and judicial institutions, shall continue to be effective for the time being as in the past." This was nothing more than a confirmation of the well-known rule of the Law of Nations that municipal laws, as contra-distinguished from laws of political nature, are not abrogated by a change of sovereignty. ( Co Kim Cham vs. Valdez Tan Keh and Dizon, supra.) The Indeterminate Sentence Law is not a political law. It does not affect political relations. In fact, it is a part of the Commonwealth's criminal and penal system directly related to the punishment of crime and the maintenance of public peace and order, which Article 43 of Section III of the Hague Regulations of 1907 compels the belligerent occupant to take all steps in his power to reestablish and insure as far as possible. But the petitioner takes the position that the recommitment of which he complains was not such an act of the belligerent occupant as should be accorded respect and recognition by the Commonwealth Government, now Republic of the Philippines, after the cessation of the enemy occupation. We have only to refer to the Co Kim Cham case for a precedent that refutes this contention. In that case it was said, "It is a legal truism in political and international law that all acts and proceedings of the legislative, executive and judicial departments of a de facto government are good and valid." We held that in consonance with the theory of jus postlirninii in international law, such acts and proceedings remained good and valid after the liberation or re-occupation of the Philippines by the American and Filipino forces. The decision cited Hall's work on International Law, 7th ed., p. 518, according to which the fact that the territory which has been occupied by an enemy comes again into the power of its legitimate government or sovereignty, does not, except in a very few cases, wipe out the effects of acts done by the invader, which for one reason or another it is within his competence to do. Enforcement of the criminal law by the forces of occupation is not only valid and binding; it is imposed on them as a high obligation by the Hague Convention, as we have pointed out. The reason underlying this requirement is stated in Williams vs. Bruffy (96 U. S., 176, 192), in Co Kim Cham vs. Valdez Tan Keh and Dizon, supra:

29 The existence of a state of insurrection and war did not loosen the bonds of of society, or do away with civil government or the regular administration of the laws. Order was to be preserved, police regions maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and disent of property regulated, precisely as in the time of peace. No one that we are aware of, seriously questions the validity of judicial or legislative Acts in the insurrectionary States touching these and kindred subjects, where they were not hostile in their purpose or mode enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution.' The same doctrine has been asserted in numerous other cases."

[G.R. No. L-1115. April 30, 1948.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO SEPILLO, ANSELMO SEPILLO, CEFERINO SEPILLO and ANTONIO SILANG, defendants-appellants. SYLLABUS 1. CRIMINAL LAW; MURDER; EVIDENCE; WITNESSES, VERACITY OF; CHARACTERISTICS. The questions at issue are reduced to the identity of the culprits and the credibility of the witnesses. A comparison of the two sets of evidence convinces the Court beyond doubt that the appellants are the authors of the crime in question. The prosecution witnesses' testimony has all the characteristics of veracity, which cannot be said of the evidence for the defense. And these witnesses have not been shown to have had any plausible cause falsely to prosecute the defendants for a capital offense and let unmolested the real perpetrators of the felony. This is all the more unlikely because C. S. is the husband of the complainant's sister and all the defendants were her neighbors if not also relatives. The fact that F. S. was shot and wounded allegedly by S. I's brother and son shortly before the case at bar was instituted, as a result of which the two Is are now under prosecution for frustrated murder, helps, if any thing, to prove that F. S. was one of those responsible for S. I.'s death. 2. ID.; ID.; MOTIVE, SUFFICIENCY OF. Sufficient motive has been established for the commission of the crime by the accused. It has been shown that I and his wife had imputed to the defendants the theft of a cart and a sack of palay, as a consequence of which the relation between I. and F. S., at least, became bitter. I. and F. S. at one time were only prevented from coming to blows by the intervention of a mutual friend. 3. ID.; ID.; ID.; FAILURE TO HIDE IDENTITY. The Court was not impressed by the argument that the enmity said to have existed between the now deceased and the defendants was not of such gravity as to prompt them to slay I., and by the theory that the appellants were not so foolish as to commit a horrible crime without taking any precaution to hide their identity. While the incidents related by R. M. and A. Z., under normal conditions, might not have driven men to take extreme measures, yet it is a matter of general knowledge that irresponsible people were prone to take human life for a mere trifling affront or offense, real or imaginary, in September 1944. Those were days of disorder, chaos and confusion, when heinous crimes were committed openly and with impunity, especially in places outside the centers of population. The present case affords a concrete example of such state of affairs then; of the terrors which gripped the peaceful inhabitants and the helplessness or apathy of the authorities in coping with rampant lawlessness. Nobody dared arrest or complain against I's assailants. I's widow not only was afraid to bring the defendants to justice she seemed even afraid to reveal their names except to people of her confidence, and in a

30 whisper but she moved to live in other places and did not return to her home in Sariaya until after the accused were safely in jail, when peace had been restored. The accused, like any other uninformed people, never in all probability imagined that conditions might change or, if they did, that old crimes would be dug up and law and justice vindicated. 4. ID.; ID.; NEW TRIAL; DENIAL SUSTAINED. The Court sustained the denial by the judge a quo of a new trial, on the ground that the alleged new evidence could have been timely discovered through due diligence, that said evidence would be in conduct in one material aspect with the testimony given by the other alleged eye-witness to the killing, and that said evidence was not essential, being merely cumulative and corroborative, offering no better guarantee of its truth than the veracity of the new witness. 5. ID.; ID.; INDETERMINATE SENTENCE LAW; LIFE IMPRISONMENT. The provisions of the Indeterminate Sentence Law do not apply to cases where life imprisonment is imposed. DECISION On September 28, 1944, Sabino Ilagan was seized by four armed men from his house in barrio Concepcion, Sariaya, Quezon, and taken to an uninhabited place where he was beaten to death with blunt instruments. In April 1945, after liberation, the grave in which his body is said to have been buried was reopened and one skull was found. The four defendants are the men charged with the crime. According to Romana Manalo, Sabino Ilagan's widow, the four accused, each armed with a pistol or bolo, came at about 9 o'clock in the morning of September 28, 1944 looking for her husband. When she told them that her husband was inside the house, Francisco Sepillo called to him and Ilagan came down. After Ilagan came down, they bound his hands behind his back with a rope which Francisco Sepillo and Severino Sepillo picked up from a cart under the house. She as well as her husband pleaded that Ilagan's life be spared, telling them that they had many children. When she asked the accused where they were taking her husband, they told her that if she kept asking questions they would liquidate the whole family. Segundo Dagos said that on September 28, 1944, as he was passing by the coconut kiln plant of one Fructuoso Palino, outside the inhabited part of barrio Concepcion, he heard screams and pleas for mercy. He peeped behind a stone or wall and saw Francisco Sepillo beating Sabino Ilagan with a piece of wood. Ilagan was on his feet and his hands were tied. In the meantime, Anselmo Sepillo was beside the victim pointing a revolver at the latter; Ceferino Sepillo, with a revolver in his hand, was at the north of his companions walking to and fro and switching his eyes in different directions, and Antonio Silang was holding a bolo. When Sabino Ilagan fell forward and groaned, he hurried home out of fear. He did not count the blows dealt on the offended party but they were successive. Manuel Sasuya and Domingo Pagsuyuin declared that on the 28th of September 1944, at about 12 o'clock m., they were catching chickens to be killed at a wedding party when Anselmo Sepillo and Antonio Silang appeared and ordered them to get a shovel quickly. They asked the reason and were told that they were going to "excavate." Thereupon they fetched a shovel from Manuel Sasuya's house and were commanded to follow these two accused to a place south of a forest near Maanta river. On the bank of the river they came upon Francisco Sepillo, Ceferino Sepillo and the dead body of Sabino Ilagan, whose clothes were stained with blood. They were ordered to dig a grave, which they did with the

31 shovel they had brought. The body of the deceased was lowered into the grave after which the grave was filled with earth. The grave was knee deep and the place was innundated in rainy seasons. It was Manuel Sasuya who pointed the place where Ilagan's remains were exhumed. Tomas Jose declared that he was a relative of Romana Manalo and was a neighborhood association leader. On September 24, 1944, Romana Manalo came to tell him that her husband had been kidnapped by Francisco Sepillo. That was about 3 o'clock in the afternoon. He told Romana to go home while he went to see Francisco Sepillo. In Francisco's house he found Francisco Sepillo, Anselmo Sepillo, Ceferino Sepillo and Antonio Silang eating and armed, and the accused asked him if he was a Japanese spy. He went to Romana Manalo's house and told her that her husband was not in Francisco Sepillo's house, and she exclaimed, "My God, where have they taken my husband!" The accused put up an alibi. Francisco Sepillo testified that he was arrested as a guerrilla suspect on the 14th of September and confined in the municipal jail of Sariaya as a detention prisoner from that date continuously until the 28th of October of the same year. To corroborate him, Victoriano Baldura, former chief of police of Sariaya since July, 1944, testified that Francisco Sepillo, was kept in the municipal jail of Sariaya from September 13, 14 or 15 until after October 15th and that during his confinement the prisoner was not allowed to go out except to answer the call of nature. On cross-examination, he said that the name of this accused was not entered in the police blotter for the reason that this case "did not belong to the court"; that he consulted the court about the matter and was instructed that this prisoner's name was not to be put in the police blotter, although the police blotter, he admitted, was intended to contain the names of all persons arrested by the police; that the mayor gave him instruction that only persons accused in court should be included in the police blotter; that the mayor had the guerrilla suspects under his responsibility; that he had a separate list for guerrillas kept by the special policemen of the mayor, in which list the name of Francisco Sepillo appeared; that this list was taken along by the special policemen when they left. Another witness, Silvestre Andal, undertook to corroborate Francisco Sepillo. According to Andal, on September 14, 1944, town feast of Sariaya, he attended the celebration with Francisco Sepillo. They went to see the cockfight at about 3 o'clock in the afternoon. Later he saw people fleeing and Francisco Sepillo was arrested and tied by three Filipino policemen. He followed to see where the policemen were going to take Francisco Sepillo, because Sepillo was his companion, going to the extent of asking Lauro Panaligan, one of the three arresting officers, the reason for Francisco Sepillo's arrest. Thereafter Francisco Sepillo was detained in jail for about one and a half months. Antonio Silang, one of the defendants, swore that on the 28th of September 1944, he was in Malvar, Batangas, where he remained for 10 days from the 25th of that month to the 5th of October, having been taken to that municipality by Japanese as a forced laborer to work on a landing field. During that period he was not allowed to leave the place and was afraid to escape. He said there were many other laborers, including one companion of his from his barrio. Jorge Manalo took the stand and said he and Silang were neighbors in 1944; that on the 25th of September of that year he, together with Silang and four others, was taken by Japanese to Malvar in a truck to work in an airfield; that they stayed continuously in that place for 10 days.

32 Ceferino Sepillo testified that on the 28th of September 1944, he was in barrio Bara, Lucena, whither he and his uncle Ignacio Macaraeg had evacuated because of existing confusion in their barrio. The Japanese and the guerrillas, he said, were continually patrolling that barrio. He did not return to barrio Concepcion until the month of April 1945. Anselmo Sepillo testified that on the 28th of September, he was in the poblacion of Sariaya, having gone there on the 17th and stayed until the latter part of October. The reason, according to him, was that a policeman who had intervention "in the case of my father (Francisco) suggested that I and my mother stay in his (policeman's) house." He said that his father, Francisco Sepillo, was being suspected as a guerrilla. The defendants set up an affirmative defense, namely, that other men and not they killed Sabino Ilagan. Nicetas Carrido testified that he saw Fidel Atienza, one Crispin whose surname he did not know, and Mariano Rustia kidnap Sabino Ilagan. He knew this because, he said, those men passed in front of his house. He later said the kidnappers were headed by one Capitan Paco. He went on to say that he knew what happened to Sabino Ilagan "porque cuando paso ese grupo encabezado por Capitan Paco y, como sabia yo de que ese era hombre terrible en nuestra localidad, tanto es asi que cuando llegaba en nuestro sitio sacaba una persona, yo les segui." He said he himself was a guerrillero, a second lieutenant. He went to report to his leader, Captain Gagasa, that the group of Capitan Paco had arrived. He and Gagasa hied to the woods and found Capitan Paco and other people. Sabino Ilagan was being tied to a tree. When Captain Paco saw Captain Gagasa, Paco said, "What are you doing here," and Captain Gagasa replied, "It is because of a neighbor of ours and we want to know why he has been brought here". He related that Crispin, one of the kidnappers, subjected Sabino Ilagan to a questioning about his alleged connection with the Japanese who frequented his house. In the midst of the investigation there came the news that the Japanese were on the way and Capitan Paco told Crispin to hurry up. Crispin drew his revolver but as he was about to fire at Ilagan, Captain Paco stopped him because the noise might attract the Japanese. Thereupon Crispin returned the revolver to its holster and stabbed Sabino Ilagan with a bolo in the neck. Capitan Paco reprimanded Crispin for his haste in killing Sabino. In reply Crispin said, "We can not do anything else, we are in a precarious situation; if we left him alive our situation would be delicate." Whereupon Captain Paco, addressing Captain Gagasa said, "We are sorry at not having been able to please you; but what can we do, you have already seen what happened." The witness and his companions departed and he did not know what happened afterward. Emeterio Linapin said that Romana Manalo, Sabino Ilagan's widow, told him one day that her husband had been kidnapped by three guerrillas whom she said she did not know. He said she requested him to see where they were going to take her husband, so he closed the door of his house and hastened in the direction taken by the guerrillas. He caught up with the guerrillas but did not see Sabino Ilagan. The guerrillas in the house of Melquiades Perez included Capitan Paco, Lt. Mariano, Crispin and Fidel. He talked with Capitan Paco and the capitan told him, "It is all over." Felino Acusar said that the last time he saw Sabino Ilagan was two years ago, in September 1944. Ilagan's hands were tied and he was being conducted by three persons. Shortly before that he had met these three persons on the road and been asked by them where Sabino Ilagan lived. He pointed the house and then stopped to watch what they were going to do. The men were carrying pistols and he knew only Crispin of the three. When the men came out from Sabino Ilagan's house, Ilagan was with them, his hands tied. He did not count how many persons there

33 were. He followed them, hid himself behind a shrub, and saw Sabino Ilagan being tied to a tree. He was about 50 or 60 meters far from them. After Ilagan was tied Crispin gave him a blow with some thing which looked like a weapon. None of the accused were among the people he saw. He afterwards met Romana Manalo and told her what he had seen. The questions at issue are reduced to the identity of the culprits and the credibility of the witnesses. A comparison of the two sets of evidence convinces us beyond doubt that the appellants are the authors of the crime in question. The prosecution witnesses' testimony has all the characteristics of veracity, which cannot be said of the evidence for the defense. And these witnesses have not been shown to have had any plausible cause falsely to prosecute the defendants for a capital offense and let unmolested the real perpetrators of the felony. This is all the more unlikely because Ceferino Sepillo is the husband of the complainant's sister and all the defendants were her neighbors if not also relatives. The fact that Francisco Sepillo was shot and wounded allegedly by Sabino Ilagan's brother and son shortly before the case at bar was instituted, as a result of which the two Ilagans are now under prosecution for frustrated murder, helps, if anything, to prove that Francisco Sepillo was one of those responsible for Sabino Ilagan's death. Sufficient motive has been established for the commission of the crime by the accused. It has been shown that Ilagan and his wife had imputed to the defendants the theft of a cart and a sack of palay, as a consequence of which the relation between Ilagan and Francisco Sepillo, at least, became bitter. Ilagan and Francisco Sepillo at one time were only prevented from coming to blows by the intervention of a mutual friend. Romana Manalo testified that Francisco Sepillo had been threatening to kill her husband for two months before he was kidnapped. The origin of the two men's enmity, she said, was that Antonio Silang and Anselmo Sepillo had stolen their cart and a sack of palay in June. She said she knew from conversations of the people in the barrio that these two defendants had stolen the cart and the palay and, besides, she found the empty sack which had contained the palay in the possession of Francisco Sepillo. On that occasion she told the family of Francisco Sepillo plainly that they were the thieves. Atanacio Zara, a neighborhood association leader during the Japanese occupation, testified that in June 1944, Francisco Sepillo and Sabino Ilagan were about to exchange blows on the railroad track when he separated them; that in the afternoon of the same day he took them to the president of the neighborhood association for the purpose of having their differences settled, and they were apparently reconciled; that sometime afterward he heard that the two men were again on bad terms and so once more he tried to have them come along to the neighborhood president; that as they were starting to go, Francisco Sepillo told him, "No insista ya en arreglar, deje Vd. de que se acaba alguien", to which he, disappointed, replied that in that case he would resign, and he did that week. Ceferino Sepillo is Francisco's brother, Anselmo is his son, and Antonio Silang is his nephew. It was natural that these men, by reason of their kinship with Francisco if not from actual, personal resentment against Sabino Ilagan, should have made a common cause with the former who, from all appearances, was the moving spirit in the nefarious deed. We are not impressed by the argument that the enmity said to have existed between the now deceased and the defendants was not of such gravity as to prompt them to slay Ilagan. Neither do we share the theory that the appellants

34 were not so foolish as to commit a horrible crime without taking any precaution to hide their identity. While the incidents related by Romana Manalo and Atanacio Zara, under normal conditions, might not have driven men to take extreme measures, yet it is a matter of general knowledge that irresponsible people were prone to take human life for a more trifling affront or offense, real or imaginary, in those days. Those were days of disorder, chaos and confusion, when heinous crimes were committed openly and with impunity, especially in places outside the centers of population. The present case affords a concrete example of such state of affairs then; of the terrors which gripped the peaceful inhabitants and the helplessness or apathy of the authorities in coping with rampant lawlessness. Nobody dared arrest or complain against Ilagan's assailants. Ilagan's widow not only was afraid to bring the defendants to justice she seemed even afraid to reveal their names except to people of her confidence, and in a whisper but she moved to live in other places and did not return to her home in Sariaya until after the accused were safely in jail, when peace had been restored. The accused, like many other uninformed people, never in all probability imagined that conditions might change or, if they did, that old crimes would be dug up and law and justice vindicated. This helps to explain why the defendants carried out their plan undisguised, in broad daylight and in the presence of his victim's wife, and why in interring Ilagan's body they summoned other men to aid them. The court below did not err in refusing to give credit to the evidence for the defense. This evidence bears all the earmarks of untruth. It is replete with serious contradictions and improbabilities, as the court below has observed. And the trial judge noted that one of the men to whom the defendants impute the crime, Crispin, is dead and the whereabouts of the rest are unknown. As to the alibi, the absence of Francisco Sepillo's name from the police blotter is conclusive refutation of Francisco Sepillo's alleged incarceration. The explanation for the absence is very unsatisfactory, to say the least. For the rest, the sole basis pressed upon our attention for the acceptance of the defense is the credibility of the defendants and their witnesses. There is not a single unimpeachable bit of proof or circumstance which directly or indirectly supports the purported alibi or the alleged slaying of the offended party by Paco and his men. The last error assigned is the refusal of the court a quo to grant a new trial, which was sought on the ground of newly discovered evidence. The supposed new evidence was to consist of the testimony of one Emilio Villostas, who, like Nicetas Carrido and Feliciano Acusar, claimed to have witnessed Sabino Ilagan's killing by guerrillas under Capitan Paco. The court found that this evidence could have been discovered through due diligence. It said Villostas was a guard in the provincial jail when Francisco Sepillo was detained therein awaiting trial. Incidentally this fact leads us to doubt the truth of what this witness had to say. It is also evident that this witness' testimony, if he were allowed to testify, would be, at best, in conflict in one material respect with the testimony given by the other alleged eye- witnesses to the killing, in that according to Villostas he was captured with Ilagan by Ilagan's murderers and was to be executed with Sabino, whereas neither Nicetas Carrido nor Feliciano Acusar even mentioned Villostas as being among the people they allegedly saw. The court correctly said that, at any rate, Villostas' proffered testimony was not essential, being merely cumulative and corroborative offering no better guarantee of its truth than his veracity. All the defendants have been found guilty of murder and sentenced to an indeterminate penalty of from 10 years 8 months and one day of prision mayor to

35 reclusion perpetua, with the accessories of law; to indemnify the heirs of the deceased, jointly and severally, in the sum of P2,000, and each to pay a proportionate part of the costs. It is beyond doubt that the crime committed is murder and that the four appellants by common accord and in a concerted action took direct part in the execution of the crime. All are guilty as principals. As neither mitigating nor aggravating circumstances attended the commission of the crime, as the Solicitor General says, the appropriate penalty is reclusion perpetua. But the lower court was mistaken in giving the defendants the benefit of the Indeterminate Sentence Law. The provisions of this enactment do not apply to cases where life imprisonment is imposed. With the elimination of the principal penalty below reclusion perpetua, the appealed decision will be affirmed with costs of this appeal.

[G.R. No. L-1960. November 26, 1948.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENTINO ABILONG, defendant-appellant. SYLLABUS 1. CRIMINAL LAW; EVASION OF SERVICE OF SENTENCE; REVISED PENAL CODE; ENGLISH AND SPANISH TEXT OF ARTICLE 157, COMPARED. Inasmuch as the Revised Penal Code was originally approved and enacted in Spanish, the Spanish text governs. It is clear that the word "imprisonment" used in the English text is a wrong or erroneous translation of the phrase "sufriendo privacion de libertad" used in the Spanish text. It is equally clear that although the Solicitor General impliedly admits destierro as not constituting imprisonment, it is a deprivation of liberty, though partial, is the sense that as in the present case, the appellant by his sentence of destierro was deprived of the liberty to enter the City of Manila. 2. ID.; ID.; HOW COMMITTED; CASE AT BAR. One who, sentenced to destierro by virtue of final judgment, and prohibited from entering the City of Manila, enters said city within the period of his sentence, is guilty of evasion of sentence under article 157, Revised Penal Code (Spanish text). DECISION Florentino Abilong was charged in the Court of First Instance of Manila with evasion of service of sentence under the following information: "That on or about the 17th day of September, 1947, in the City of Manila, Philippines, the said accused, being then a convict sentenced and ordered to serve two (2) years, four (4) months and one (1) day of destierro during which he should not enter any place within the radius of 100 kilometers from the City of Manila, by virtue of final judgment rendered by the municipal court on April 5, 1946, in criminal case No. B-4795 for attempted robbery, did then and there wilfully, unlawfully and feloniously evade the service of said sentence by going beyond the limits made against him and commit vagrancy. "Contrary to law." Upon arraignment he pleaded guilty and was sentenced to two (2) years, four (4) months and one (1) day of prision correccional, with the accessory penalties of the

36 law and to pay the costs. He is appealing from that decision with the following assignment of error: 1. The lower court erred in imposing a penalty on the accused under article 157 of the Revised Penal Code, which does not cover evasion of service of "destierro." Counsel for the appellant contends that a person like the accused evading a sentence of destierro is not criminally liable under the provisions of the Revised Penal Code, particularly article 157 of the said Code for the reason that said article 157 refers only to persons who are imprisoned in a penal institution and completely deprived of their liberty. He bases his contention on the word "imprisonment" used in the English text of said article which in part reads as follows: "Evasion of service of sentence. The penalty of prision correccional in its medium and maximum periods shall be imposed upon any convict who shall evade service of his sentence by escaping during the term of his imprisonment by reason of final judgment." The Solicitor General in his brief says that had the original text of the Revised Penal Code been in the English language, then the theory of the appellant could be upheld. However, it is the Spanish text that is controlling in case of doubt. The Spanish text of article 157 in part reads thus: "ART. 157. Quebrantamiento de sentencia. Sera castigado con prision correccional en sus grados medio maximo el sentenciado que quebrantare su condena, fugandose mientras estuviere sufriendo privacion de libertad por sentencia firme; . . .." We agree with the Solicitor General that inasmuch as the Revised Penal Code was originally approved and enacted in Spanish, the Spanish text governs (People vs. Manaba, 58 Phil., 665, 668). It is clear that the word "imprisonment" used in the English text is a wrong or erroneous translation of the phrase "sufriendo privacion de libertad" used in the Spanish text. It is equally clear that although the Solicitor General impliedly admits destierro as not constituting imprisonment, it is a deprivation of liberty, though partial, in the sense that as in the present case, the appellant by his sentence of destierro was deprived of the liberty to enter the City of Manila. This view has been adopted in the case of People vs. Samonte, No. 36559 (July 26, 1932; 57 Phil, 968) wherein this Court held, as quoted in the brief of the Solicitor General that "it is clear that a person under sentence of destierro is suffering deprivation of his liberty and escapes from the restrictions of the penalty when he enters the prohibited area." Said ruling in that case was ratified by this Court, though, indirectly in the case of People vs. Jose de Jesus, (45 Off. Gaz. Supp. to No. 9, p. 370) 1 , where it was held that one evades the service of his sentence of destierro when he enters the prohibited area specified in the judgment of conviction, and he cannot invoke the provisions of the Indeterminate Sentence Law which provides that its provisions do not apply to those who shall have escaped from confinement or evaded sentence. In conclusion we find and hold that the appellant is guilty of evasion of service of sentence under article 157 of the Revised Penal Code (Spanish text), in that during the period of his sentence of destierro by virtue of final judgment wherein he was prohibited from entering the City of Manila, he entered said City. Finding no reversible error in the decision appealed from, the same is hereby affirmed with costs against the appellant. So ordered.

37

[G.R. Nos. L-2391 & L-2392. February 22, 1950.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIONISIO DIZON Y GUEVARRA ET AL., defendants. HERNANDO DE CASTRO Y BURGOS, appellant. SYLLABUS 1. CRIMINAL LAW; ROBBERY WITH VIOLENCE OR INTIMIDATION; PENALTY UNDER ARTICLE 294, No 5, PRESENCE OF ONE AGGRAVATING AND MITIGATING CIRCUMSTANCES; INDETERMINATE SENTENCE LAW. With the presence of the aggravating circumstance of recidivism offset by the mitigating circumstance of appellant's plea of guilty in a crime of robbery with violence or intimidation, the minimum penalty to be imposed upon the accused under article 294, No. 5 as amended, and rules 1 and 4, article 64 of the Revised Penal Code, and the Indeterminate Sentence Law, should not be less than 4 months and 1 day of arresto mayor not more than 4 years and 2 months of prision correccional, and the maximum, not less than 6 years and 1 day nor more than 8 years or prision mayor. DECISION In these two cases the accused pleaded guilty after withdrawing a previous plea of not guilty. Under the circumstances the only question to be determined, as both parties agree, concerns the correctness of the punishment imposed by the trial court; all the material facts alleged in the information are deemed admitted. The accused in each case was sentenced to an indeterminate penalty of from 4 months and 1 day of arresto mayor to 4 years, 2 months and 1 day of prision correccional, to indemnify the offended party in case No. 5575 in the amount of P35 and the offended party in case No. 5576 in the amount of P4, with the corresponding subsidiary imprisonment in case of insolvency, and to pay the costs. The informations are as follows: "Criminal Case No. 5575 "That on or about the 30th day of January, 1948, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping one another, did then and there wilfully, unlawfully and feloniously, with intent of gain and by means of force and intimidation, to wit: by pointing a pistol at one Adriano Perlado and threatening to shoot him should he offer any resistance, or shout for help, took, stole and carried away against the will of the said Adriano Perlado, a 'Gruen' wrist watch, valued at P400, and 1 Parker '51' fountain pen, valued at P35, belonging to him, to his damage and prejudice in the total amount of P435, Philippine currency. "That the accused Hernando de Castro y Burgos is a recidivist, he having been previously convicted by final judgment of competent court for the crime of theft." "Criminal Case No. 5576 "That on or about the 30th day of January, 1948, in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping one another did then and there wilfully, unlawfully and feloniously, with intent of gain and by means of force and intimidation, to wit: by pointing a pistol at one Bienvenido Rosete and threatening to shoot him should he offer any resistance or, shout for help, took, stole and carried away against the will of the said Bienvenido Rosete, 1 'Harman' wrist watch, valued at P80, and 1 'Universal' fountain pen, valued at P4, belonging to him, to his damage and prejudice in the total amount of P84, Philippine currency.

38 "That the accused Hernando de Castro y Burgos is a recidivist, he having been previously convicted by final judgment of competent court for the crime of theft." Counsel for the defendant believes that the appropriate penalty in each case is 4 months and 1 day of arresto mayor as minimum and 6 years, 1 month and 11 days of prision mayor as maximum. The penalty prescribed by article 294, No. 5, of the Revised Penal Code as amended by section 6 of Republic Act No. 18 is prision correccional in its maximum period to prision mayor in its medium period. Since the aggravating circumstance of recidivism charged in the information is offset by appellant's plea of guilty, the prescribed penalty, following the provision of rules 1 and 4 of article 64 of the Revised Penal Code, should be imposed in its medium period, that is, from 6 years and 1 day to 8 years. In accordance with section 1 of the Indeterminate Sentence Law (Act No. 4103), as amended by Act No. 4225, the minimum penalty should not be less than 4 months and 1 day of arresto mayor nor more than 4 years and 2 months of prision correccional, and the maximum, not less than 6 years and 1 day nor more than 8 years of prision mayor. The minimum penalty imposed in each case is correct but the maximum of 4 years, 2 months and 1 day is below the range. Wherefore, the appellant is sentenced in each case to 4 months and 1 day of arresto mayor as minimum and 6 years and 1 day of prision mayor as maximum. There is an obvious typographical or inadvertent error in the judgment with regard to the indemnity in case No. 5576. Instead of P4, the figure should be P84, which is the true value of the articles robbed, according to the information. With these modifications, the judgment appealed from is affirmed with costs of this instance against the appellant.

[G.R. No. L-3269. April 20, 1951.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HONORIO MAGBANUA, defendant-appellant. SYLLABUS 1. CRIMINAL LAW; PENALTIES; INDETERMINATE SENTENCE LAW. The indeterminate sentence law is not applicable to persons convicted of offenses punished with the death penalty or life imprisonment. DECISION For allegedly robbing Filomena Martires of cash amounting to P5,500 and jewelry valued at P1,000 and in connection with said robbery, killing her and her companion Paulino Hospital in the municipality of Pototan, province of Iloilo, on May 8, 1946, appellant Honorio Magbanua was accused of robbery with double homicide, in the Court of First Instance of Iloilo. After trial, he was found guilty of the charge and sentenced to not less than seventeen (17) years and four (4) months of reclusion temporal and not more than reclusion perpetua, with the accessories of the law, to indemnify the heirs of Paulino Hospital in the sum of P6,000, the heirs of Filomena Martires in the amount of P6,000 for her death and P5,050 for the money and jewelry taken away from her, and to pay the costs. From that decision he has appealed directly to this Court.

39 From the evidence in the record consisting of the testimony of witnesses and of the affidavit of the accused, Exhibit A, with its translation (Exh. A-1), we find the following facts to have been established beyond reasonable doubt. In the year 1946, Filomena Martires, a resident of the province of Capiz, was engaged in buying and selling palay, more or less, on a big scale. On May 6th of the same year she arrived at the town of Pototan, Iloilo, stopping at the house of a friend, Secundina Poticar. She told Secundina that she came to pay off certain people for palay she had previously bought, and to buy some more of the grain. In a room of the house and in the presence of Secundina, Filomena counted the money that she had brought with her, amounting to P5,000 which she took from a belt fastened around her waist, and which she replaced in the said belt after counting. She was then wearing a gold necklace with a cross incrusted with diamonds, a pair of a golden earrings also with diamonds, and a ring with a diamond "solitario". It was then the eve of the town holiday or fiesta of Pototan and early the following morning she went to church. After the mass she went to the railway station where she met the appellant Honorio Magbanua who was also looking for her. Magbanua informed her that there were some cavans of palay available for sale in the barrio of Barasan. After some conversation, presumably about the price of palay and the amount which she was ready to buy, she gave some money to the appellant with instructions to buy the palay and have it brought to town, and for purposes of helping him haul the grain, Paulino Hospital, a laborer working at the railway station, was engaged by Filomena, and he accompanied the accused to the barrio of Barasan. Filomena remained at the station. After sometime Paulino returned and told his wife, Eduviges Pats, who was selling bread and cakes at the station that he had been sent back by the defendant to get some more money from Filomena whom he later informed of his mission. Filomena gave him the amount needed and with it he returned to Barasan. Later, Paulino again returned to the station, told his wife and Filomena that the money given him was not enough, and that this time he was asked by the defendant to bring Filomena herself and for her to bring some more cash. Acting upon this information and request, Filomena went with Paulino to the barrio. Once there, the appellant informed them that the palay for sale was on the other side of a wide open field which they had to cross on foot. On reaching the middle of the field, without any warning or provocation, Magbanua attacked Paulino Hospital with an army table knife, inflicting upon him wounds that felled him and caused his death almost immediately. Filomena, amazed and shocked at the strange and unexpected behavior of her agent and buyer, asked him why he was acting in that manner, but for all response he also attacked and wounded her with the same knife, and then snatching from her handbag, he took from it a .32 caliber revolver and with it fired at her, emptying its bullets into her abdomen and right thigh, also killing her almost instantly. Then, he appropriated all the money and jewelry found on her person, after which he dragged her body to where Paulino lay and covering their bodies with dry grass, he fled from the place. From Pototan, the accused went to Iloilo and from there he proceeded to the towns of Bacolod and San Carlos, Negros Occidental, later taking a boat that took him to the City of Cebu. After staying there for about two days, he proceeded to Davao where he met a townmate Luciano Poyod. He stayed or presumably hid in the farm of Poyod in the barrio of Man-ay, Tagum, Davao. In Davao he spent some of the money that he had taken from Filomena and sold the jewelry for about P60 after which, he tried to work stripping abaca until September, 1947, when he took a boat for Manila where he stayed with a relative in Calle Wright, Malate. He was finally arrested by the Manila Police and returned to Pototan,

40 Iloilo on May 20, 1948, about two years after committing the crime of which he was charged. In Pototan, Magbanua was delivered to the custody of Capt. Nera, an Intelligence Officer of the Constabulary. After being investigated on the same day of his arrival, and expressing willingness to talk, his statements were reduced to writing (Exhibit A) typewritten by a soldier named Julio Gumban acting as clerk or typist in the office of Captain Nera. Thereafter, the affiant was sent to the office of the Clerk of Court, Juan Jamora, accompanied by enlisted men Valenzuela and Tiso. After the contents of the affidavit had been read and explained to him by Jamora and after his assurance that said contents were true and correct, he signed Exhibit A. Going back to the happenings in Pototan in May, 1946, Eduviges Pats, wife of Paulino Hospital while on the witness stand told the court that on the morning of May 8, 1946, when her husband and Filomena left the railway station for the third time to go to barrio Barasan, she waited for his return all day but she waited in vain. She continued her enquiries until the next day, in the course of which, she met the defendant's wife to whom she expressed her concern over her husband's failure to return, but the said wife of the accused allayed her fears and comforted her, saying that her husband was a good man, and that perhaps they were delayed in looking for people to haul the palay. The following day, May 10th, Eduviges continuing her inquiries about her husband at the station, heard a rumor to the effect that two dead bodies had been discovered in the middle of a field in barrio Barasan. She immediately notified the Military Po]ice and with them, she went to the said barrio. In the field already mentioned the bodies of Filomena and Paulino were found. After an examination by the president of the sanitary division, Dr. Engracio Parrenas, the bodies were taken to the poblacion. According to Dr. Perrenas (see Exhibit B) the body of Filomena Martires bore four (4) gunshot wounds in the abdomen situated near the umbilical region and one gunshot wound in the right thigh piercing said member, and stab wounds on the left base of the neck and at the back of the posterior base of the same. The body of Paulino Hospital bore the following "one stab wound on the neck right base about two and one-half (2 1/2) inches deep and another stab wound at the back, scapular right about two (2) inches deep and still another stab wound at the back on the cervical region about one and a half (1 1/2) inches deep." The cause of death of the two was internal and external hemorrhage due to the wounds inflicted. In the affidavit sworn to and signed by appellant, he admits killing Filomena and Paulino, the first, to rob her, and the other, to seal his lips. But on the witness stand Magbanua repudiated his affidavit (Exhibit A), telling the court that it was the result of severe beating and torture by soldier Julio Gumban in a secret room near the office of Capt. Nera and adjoining that of Capt. Santiago. In support of this claim the defense presented Exhibit "1" which is a certificate issued by Dr. Desiderio D. Guiao who, at the request of a relative of Magbanua, had examined him on May 25, 1948, that is to say, five (5) days after the torture to which Magbanua had allegedly been subjected on May 20th of the same year. After considering the evidence as a whole and the circumstances attending the said alleged torture at the time and sometime thereafter, we believe that the trial court correctly rejected this theory of the defense. According to the accused, the beating he suffered was unusually severe and brutal. Gumban was supposed to have tied his two elbows behind his back with electric wire and in this condition of defenselessness, Gumban proceeded to deliver fist blows and kicks, even hitting him repeatedly with the butt of his revolver so that he (appellant) fell to the floor several times; and yet all he could show for this severe manhandling was what appears on Exhibit "1", namely, "a linear single bruised scar on the lower outer portion of the arm and a swelling of the left jaw." According to Dr. Guiao when

41 presented as witness for the defense, said injuries must have been inflicted about two and a half (2 1/2) or three (3) days before the examination conducted by him on May 25th. Apparently, they did not go as far back as May 20th, the date of the alleged torture. All this led the trial court to believe and to find that these injuries must have been self-inflicted to bolster his claim of torture in order to neutralize the effect of his affidavit. On this same subject of torture, we quote with approval a portion of the decision appealed from penned by Judge Manuel Blanco "El juzgado no cree en esas excusas del acusado, porque ni el Capitan Nera ni el Capitan Santiago en la maana y tarde del dia 20 de Mayo, ni el escribano Sr. Jamora de este juzgado al dia siguiente, vieron seal alguna de violencia en el cuerpo del acusado; este no enseo sus lesiones a su periente Zoilo Magbanua, uno de los escribientes de este Juzgado da Primera Instancia, que estuvo presente cuando el acusado suscribio y juro el affidavit Exhibit A ante el escribano Sr. Jamora; tuvo entonces conversacion con Zoilo Magbanua y este fue el que acto seguido, despues de prestada la confesion Exhibit A, llevo al acusado a la fiscalia provincial, situada en los bajos del mismo edificio de la Aduana de Iloilo donde tenia entonces sus oficinas este Juzgado de Primera Instancia; pues bien, nada dijo a Magbanua de los castigos que la habia inferido Julio Gumban, ni de las lesiones en su cuerpo que habian dejado tales castigos, lo cual hubiera sido lo mas natural que podria haber hecho el acusado en el predicamento en que se hallaba, a saber, confiarlo a su pariente Zoilo Magbanua para que este, como empleado que era de este Juzgado de Primera Instancia le ayudara a salir del atolladero y hallase los medios de defenderle contra las alegadas tropelias de Gumban; pero el acusado no lo hizo asi y esa su actitud milita contra el en sus presentes pertensiones. Lo mismo podria decirse del escribano Sr. Jamora, que de haber visto las lesiones del acusado, sobre todo la de la mandibula izquierda visible a todas luces, de ser cierta hubiese entrado en sospechas y tomado las naturales precauciones para proteger al acusado en la toma de la confesion Exhibit A. "El acusado tampoco ha enseado sus lesiones ni ha relatado los alegados malostratos de Gumban al Alcaide de la carcel provincial, ni al jefe de policia de Pototan, cuando desde la comandancia de la Constabularia fue llevado a la carcel provincial y al municipio de Pototan despues de haber prestado el affidavit Exhibit A, para ser llevado por fin al Juzgado de Paz del ltimo lugar para la investigacion preliminar de esta causa. "La oficina del escribano Sr. Jamora estaba separada tan solamente por un pasillo de los despachos de dos de los jueces de este Juzgado de Primera Instancia. El acusado, persona ilustrada, pues ha sido 'land tax clerk' de la oficina del tesorero municipal de Pototan, hombre de 42 aos de edad, alto, pesa 167 libras y en la plenitud de sus facultades fisicas y mentales, no es de creer que se aplanara y se achicara hasta tal grado de abyeccion tan solamente por los malostraatos de Gumban despues de todo no muy graves, aceptando para fines del argumento solamente sus alegaciones sobre el particular hasta tal extremo, repetimos, que le hiciera no usar de su derecho de pedir proteccion a cualquier de los jueces de este juzgado de primera instancia que se hallaban muy cerca de el. Y ese su negativo proceder corrobora la pretension de la acusacion de que la confesion Exhibit A fue espontanea y voluntaria por parte del acusado Honorio Magbanua." Proof of guilt of appellant rests not entirely on his affidavit, Exhibit A. The statements contained therein are corroborated by the testimony of Pacita Pendon who, on May 8, 1946, lived in a house in the same field of the gruesome incident and from her window and at a distance of about 200 yards witnessed the killing. She was sure of the identity of the killer, the defendant, for they had known each other since childhood. Of course her version of the details and sequence of the attack on Paulino and Filomena differ somewhat from that found in Exhibit A, but

42 one should bear in mind that Pacita is an unlettered and simple minded woman who related in Court her impressions of what she had seen almost three years before. But of one thing she was sure, namely, that she had seen the accused attack and kill the two victims, after which he dragged the body of the woman to that of the man and then covered them with dry grass. The sudden flight or disappearance of the accused from his native town (Pototan) where his wife and children were residing, his hurried trips to and short stay in Iloilo, Negros and Cebu and his prolonged stay in Davao and later in Manila for about two years after the commission of the crime, all that time abandoning his family and his business of buy and sell, do not speak well of his alleged innocence. According to him, the amount of P1,400 was stolen from him in the City of Cebu where he stayed for a short time on his day to Davao. Of course, he tried to explain the possession of this relatively big amount, say that he had borrowed it from his brothers in law and from his father. It is possible, if not probable, however, that this amount was part of the money he had taken from the person of Filomena Martires. In conclusion, we agree with the trial court, that the guilt of the appellant has been established beyond reasonable doubt. We also agree with the Solicitor General that the trial court erred in applying the law on indeterminate sentence in this case. In the absence of either aggravating or mitigating circumstances the penalty which is to be applied in its medium degree is reclusion perpetua. According to section 2 of Act 4103 known as the law on indeterminate sentence as amended by Act 4225, said Act shall not apply to persons convicted of offenses punished with death penalty or life imprisonment. The accused shall therefore be sentenced to reclusion perpetua. With this modification, the decision appealed from is hereby affirmed, with costs. So ordered.

[G.R. No. L-3565. April 20, 1951.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NANG KAY alias SY KEE, defendant-appellant. SYLLABUS 1. CRIMINAL PROCEDURE; RIGHT TO BE ASSISTED BY COUNSEL; PRESUMPTION THAT COURT INFORMED ACCUSED OF SUCH RIGHT. The fact that the record of the case does not show whether or not the court informed the accused of his right to have counsel cannot be interpreted in the sense that the court failed to inform him of such right. On the contrary, because of the presumption that the law has been complied with, it is to be presumed that the court has complied with its duty and that it has informed the accused that he may have counsel, even a counsel de officio if he wanted to. 2. CRIMINAL LAW; SENTENCE; INDETERMINATE SENTENCE LAW, NOT TO BE APPLIED IF UNFAVORABLE TO ACCEPT. In cases where the application of the law on indeterminate sentence would be unfavorable to the accused, resulting in the lengthening of his prison sentence, said law on indeterminate sentence should not be applied. The law on indeterminate sentence as a rule was intended to favor the defendant in a criminal case particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental, and moral record as a prisoner, to be determined by the Board of Indeterminate Sentence. it is one of the purposes of the law to prevent unnecessary and excessive deprivation of personal liberty and economic usefulness.

43

DECISION In the Court of First Instance of Rizal, Nang Kay alias Sy Kee was charged with illegal possession of firearms in that in his possession were found three grease guns and two Thompson Submachine guns, and empty magazines, without the necessary license. In court he appeared _ without counsel and upon being arraigned, he pleaded guilty. He was sentenced to imprisonment for five (5) years and one (1) day, with the accessories of the law, and to pay costs. The firearms and ammunition in question were ordered confiscated in favor of the Government. He now appeals to this Court on the ground that the trial court failed to inform him at the arraignment of his light to be assisted by counsel. The Solicitor General also questions the correctness of the penalty imposed, expressing the opinion and making the recommendation that the law on indeterminate sentence should have been applied. Counsel for the appellant makes citations of authorities to the effect that it is the duty of the court to inform the defendant in a criminal case of his right to have counsel, and that should the court fail to do so, its action constitutes a reversible error. In this, we agree with the said counsel. However, contrary to the claim of said counsel that the record in this case shows that the court failed to inform the appellant of his right to have counsel, we believe that the record merely fails to show that the court complied with this duty. In other words, the record of the case is silent on this point. Both the minutes of the court session during which appellant was arraigned as well as the certificate of arraignment signed by the Clerk of Court merely show that the case was called for arraignment, the accused appeared without counsel, and that upon being arraigned, he pleaded guilty to the charge. The transcript of the stenographic notes taken down by the stenographer further states that the court instructed the Clerk of Court to read the information which was translated to the accused after which, the court asked the defendant for his plea. The accused then pleaded guilty. As we have already stated, the record of the case does not show whether or not the court informed the appellant of his right to have counsel, but of course this cannot be interpreted in the sense that the court failed to so inform him of such right. On the contrary, because of the presumption that the law has been complied with, it is to be presumed in this case that the court has complied with its duty and that it has informed the appellant that he may have counsel, even a counsel de officio if he wanted to. In the case of People vs. Miranda, 78 Phil., 418; 44 Off. Gaz., No. 9, p. 3307, involving a similar case of illegal possession of a firearm, namely, a carbine with ammunition, this Court passing upon the same point now raised, said: "This precise issue was determined in United States vs. Labial, 27 Phil. 87, 88, in the sense that unless the contrary appears in the records, it will be presumed, that the defendant was informed by the court of his right to counsel; 'if we should insist on finding every fact fully recorded before a citizen can be punished for an offense against the laws, we should destroy public justice, and give unbriddled license to crime. Much must be left to intendment and presumption for it is often less difficult to do things correctly than to describe them correctly,' [People vs. Labial]. The same doctrine was reiterated in People vs. Abuyen, 52 Phil., 722 and in United States vs. Custan, 28 Phil., 19. We see no reason to modify it now . . .." See also the case of People vs. Javier, 64 Phil., 413, wherein it was stated that this Tribunal has repeatedly held that failure to state in the record that an accused has been informed of his right to have counsel, does not warrant reversal of the judgment if it does not affirmatively appear that he has not been informed thereof.

44

Moreover, it has been held in the case of U. S. vs. Escalante, 36 Phil., 746, that when the appellant fails to raise the question of his right to have an attorney in the trial court, that question will not be considered when raised for the first time in the Supreme Court. In the present case, it does not appear that this point was ever raised in the court below. As to the application of the law on indeterminate sentence, the Solicitor General merely says that the trial court failed to apply said law, and he recommends that it be applied, without giving his reasons for said recommendation. We agree with the Solicitor General that the letter of the law on indeterminate sentence (Act No. 4103) as amended by Act No. 4225, particularly the latter part of Section 1 thereof, supports his contention, the offense in the present case being penalized by special law. Said legal provision states that: ". . . and if the offense is punished by any other law (not the Revised Penal Code or its amendments), the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." Section 2692 of the Revised Administrative Code as amended by Commonwealth Act 56 and Republic Act No. 4 penalizes the criminal act of the appellant with imprisonment of not less than five (5) years nor more than ten (10) years. So, if we applied the law on indeterminate sentence, the penalty as recommended by the Solicitor General would be not less than five (5) years and not more than a period exceeding ten (10) years. That penalty could hardly be regarded as favorable to the accused, considering his plea of guilty. We should not lose sight of the fact that the law on indeterminate sentence as a rule is intended to favor the defendant in a criminal case particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental, and moral record as a prisoner, to be determined by the Board of Indeterminate Sentence. Upon favorable recommendation by that Board, the prisoner may be released on parole upon the expiration of his minimum sentence. In fact the Governor General in his message published in 31 Off. Gaz., No. 92, August 3, 1933, issued in connection with the promulgation of the present law on indeterminate sentence, said that one of the purposes of the law was to prevent unnecessary and excessive deprivation of personal liberty and economic usefulness. Under the special law on illegal possession of firearms applicable to this case, already referred to, if we had no law on indeterminate sentence in this jurisdiction, considering the plea of guilty entered by the appellant, the trial court could well and lawfully have given him a prison sentence of five (5) years. If we are now to apply the law on indeterminate sentence in the instant case, the prison term would have to be more than five ( 5 ) years for the reason that the minimum could not be less than five (5) years and the maximum necessarily would have to be more than five (5) years but not more than ten (10) years. That would certainly be not in accordance with the purpose of the law on indeterminate sentence; in fact it would run counter to its spirit. Moreover, there are authorities to the effect that where the statute under which an accused was convicted fixes the maximum and minimum punishment, or either of them, it has been held that it is not necessary, under the indeterminate sentence law, for the court to specify in the sentence such maximum and minimum punishment. . . . (24 C. J. S. p. 109, Sec. 1582). Besides, it has also been held that the law on indeterminate sentence being penal in character must receive a strict

45 construction in favor of the one to whom the penalty is exacted. (24 C. J. S. p. 1219, Sec. 1993). We are, therefore, of the opinion and hold that in cases where the application of the law on indeterminate sentence would be unfavorable to the accused, resulting in the lengthening of his prison sentence, said law on indeterminate sentence should not be applied. Under this opinion, it is obvious that the trial court did not err in sentencing the appellant to imprisonment for five (5) years and one (1) day. In view of the foregoing, the decision appealed from is hereby affirmed, with costs. So ordered.

[G.R. No. L-5196. November 13, 1952.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PLARIDEL DIMALANTA, defendant-appellant. SYLLABUS 1. CRIMINAL PROCEDURE; PRESUMPTION OF CORRECTNESS OF THE RECORD. Where an order of the court appearing on record says, "A peticion del abogado que representa al aqui acusado, se da por retirada su mocion", and the defendant's lawyer on appeal indicated no mistake in the records, such statement of the trial court must be taken as correct. 2. CRIMINAL LAW; SENTENCE; INDETERMINATE SENTENCE LAW, APPLICATION OF. The application of the Indeterminate Sentence Law is based upon the penalty actually imposed in accordance with law and not upon that which may be imposed in the discretion of the court. DECISION On January 4, 1950, an information was filed against Plaridel Dimalanta in the Court of First Instance of Quezon City, charging him with theft of electric current belonging to the Manila Electric Company, valued at P333, by using a "jumper," committed in the month of April, 1949. On the same day, at noon, upon being arraigned, he pleaded guilty. The court in public session forthwith sentenced him to suffer six (6) months and one (1) day of prision correccional, to indemnify the Manila Electric Company in the sum of P333, with the proper subsidiary imprisonment in case of insolvency, not to exceed one-third (1/3) of the principal penalty. On January 11, 1950, the appellant filed a motion with the trial court entitled "Motion for Appeal" on the ground that, in view of his plea of guilty, the penalty was excessive. Having filed a bail bond of P3,000 subscribed by the Plaridel Surety and Insurance Company, the court ordered his provisional release. On January 19, 1950, Atty. Senen S. Ceniza, in behalf of the defendant, filed a motion entitled "Urgent Motion for Permission to Change Plea of Guilty to NOT Guilty," based on the following grounds: "1. That his plea of guilty was made on the instruction of a certain person who told him to plead such, so that the penalty should be a fine and that some body will take charge of paying such fine; and

46 "2. That had this case been tried on its merits he would have been able to prove his innocence." He prayed that the judgment rendered on January 4 be set aside and the case be set for trial on the merits, allowing the accused to change his plea of guilty to that of not guilty. On January 21, in open court, said motion was denied and the appeal was given due course. On January 21, 1950, the trial court issued the following order: "ORDEN "A peticion del abogado Ceniza, que representa al aqui acusado, se da por retirada su mocion de 19 del actual, y dese curso a la apelacion interpuesta por dicho acusado. "Asi se ordena. "Dada en sesion publica del Tribunal en la ciudad de Quezon, Filipinas, a 21 de enero de 1950. "(Fdo.) CEFERINO DE LOS SANTOS Juez" The accused now appeals to this Court, making the following assignments of error: "I "The lower court erred in not granting the 'Urgent Motion for Permission to Change Plea of Guilty to not Guilty' of counsel for accused. "II "The lower court erred in giving indemnity to the offended party, the Manila Electric Company, in the sum of P333 value of the alleged 6,660 kilowatts of electric current stolen. "III "Granting that the accused is guilty of the crime charged, the lower court erred in not giving to the accused the benefits of the Indeterminate Sentence Law. "IV "The lower court erred in imposing upon the appellant the penalty of six (6) months and one (1) day of prision correccional." Inasmuch as the attorney of the accused withdrew his motion that the appellant be allowed to change his plea of guilty to that of not guilty, the court could not and did not deny said motion. Commenting on said withdrawal, the Solicitor General says: "There can be no clearer proof than the above quoted order which forms part of the records, that his Honor, the trial judge, did not deny the urgent motion. The motion was considered withdrawn (se da por retirada) upon petition of the same counsel who filed the motion. The appellant's counsel on appeal (different from his counsel in the lower court) having indicated no mistake in the records, or denied that defendant's trial counsel in truth and in fact petitioned for the withdrawal of the motion in order to give way for the appeal to proceed, there should be no reason to doubt the regularity of all the proceedings had in the lower court which regularity should be presumed. There is, consequently, no necessity to enter upon a discussion of the right of accused to change his plea of guilty to one of not guilty. Granting the existence of such right, the fact is, that the

47 appellant desisted, perhaps after a sober second thought, from changing his plea, when he withdrew, through counsel, his motion to change his plea." The appellant in withdrawing his motion to change his plea must have taken into consideration that the withdrawal of his plea of guilty might deprive him of a mitigating circumstance. There is no reason now to order a new trial. With regard to the contention of the appellant that he should have been given the benefits of the Indeterminate Sentence Law, it is clear that he is not entitled to them, for the reason that the penalty imposed upon him does not exceed one (1) year (sec. 2, Act No. 4103). The application of the Indeterminate Sentence Law is based upon the penalty actually imposed in accordance with law and not upon that which may be imposed in the discretion of the court. As no error has been committed by the trial court, the judgment appealed from is affirmed, with costs against the appellant. It is so ordered.

[G.R. No. L-7616. May 10, 1955.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICTORIO HERNANDEZ, defendant-appellant. SYLLABUS 1. CRIMINAL LAW; INDETERMINATE SENTENCE LAW; UPON WHAT PENALTY ITS APPLICATION IS BASED. "The application of the Interminate Sentence Law is based upon the penalty actually imposed in accordance with law and not upon that which may be imposed in the discretion of the court." (People of the Philippines vs. Dimalanta, 92 Phil., 239). DECISION Victorio Hernandez, driver of a truck, was charged with homicide through reckless imprudence in the Court of First Instance of Cavite for having run over and killed a child seven years old. At the trial, he pleaded guilty to the charge, and, having been allowed to prove the mitigating circumstance of voluntary surrender, the trial court sentenced him to suffer one year of prisin correccional and to pay the costs. No pronouncement was made as to his civil liability because of the reservation made by the private prosecutor. Notwithstanding his plea of guilty, the defendant appealed from the decision, and the case was certified to this court because the question raised is one purely of law. The only error assigned by appellant is that the trial court failed to appreciate in his favor the benefits of the Indeterminate Sentence Law. He claims that considering the presence of two mitigating circumstances the imposable penalty should be arresto mayor in its maximum period to prisin correccional in its minimum period, the duration of which is 4 months and 1 day to 2 years and 4 months. This, he says, should be further divided into three periods, the medium of which is 1 year and 1 day to 1 year and 8 months of prisin correccional, which should be the one 'to be considered because of lack of additional qualifying circumstance. And the penalty next lower, following the provisions of the Indeterminate Sentence Law, is arresto mayor in its minimum and medium periods, the minimum of which is 1 month and 1 day to 2 months of arresto mayor. The penalty that should therefore be imposed upon appellant if we are to consider the Indeterminate Sentence Law is one the minimum of which is 1 month and 1 day to 2 months of arresto mayor and the maximum of 1 year and 1 day to 1 year and 8 months of prisin correccional. However, the trial court in

48 convicting the appellant chose to overlook the Indeterminate Sentence Law and merely imposed upon him a straight penalty of 1 year of prisin correccional which he believes is unfair considering the circumstances of this case. We disagree with this contention of appellant. The crime charged comes under paragraph 6 of Article 365 of the Revised Penal Code which prescribes a penalty of prisin correccional in its minimum and medium periods. Notwithstanding the provisions of Republic Act No. 384 to the effect that in the imposition of the penalties prescribed by said Article 365, the court may exercise its discretion without regard to the rules prescribed in Article 64 (relative to the presence of mitigating and aggravating circumstances), the trial court in the instant case reduced the penalty by one degree because of the presence of two mitigating circumstances, which reduced penalty is arresto mayor in its maximum period to prisin correccional in its minimum period, the duration of which is 4 months and 1 day to 2 years and 4 months. The straight penalty of 1 year imprisonment imposed by the trial court is therefore within the range provided for by law. It is true that the trial court could have imposed an imprisonment the minimum of which should be not less than 1 month and 1 day but not greater than 4 months, and the maximum not less than 4 months and 1 day nor greater than 2 years and 4 months, if it has chosen to apply the provisions of the Indeterminate Sentence Law, but having made use of its discretion without reference to the technical subdivision of the period within the range of the penalty provided for by law by applying a straight penalty of 1 year imprisonment (People vs. Ducosin, 59 Phil., 109), we believe that appellant cannot now invoke the benefits of said law because the same does not apply when the maximum term of imprisonment does not exceed 1 year (Section 2, Act No. 4103). It has been held that "The application of the Indeterminate Sentence Law is based upon the penalty actually imposed in accordance with law and not upon that which may be imposed in the discretion of the court." (People vs. Dimalanta, 92 Phil., 239.) As no error has been committed by the trial court, the judgment appealed from is affirmed, with costs against appellant.

[G.R. No. L-6587. January 27, 1956.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GAUDENCIO DE JOYA Y CAPACIA, ET AL., defendants, RICARDO HORNALES Y YAMBAO, defendant-appellant. SYLLABUS INDETERMINATE SENTENCE; DETERMINATION OF MINIMUM TERM. The determination of the minimum term of the indeterminate sentence within the range provided by law is left entirely within the discretion of the trial court, and this discretion should not be interfered with except in case of abuse. In the case at bar, appellant's arguments fail to show any such abuse. The fact that the properties stolen were recovered merely exempts appellant from civil liability, but has no bearing on the determination on his penalty; while his plea of guilt is required to be considered (by way of mitigation) only in the imposition of the maximum term of his sentence, and in this case, it has already been taken into account as offsetting the aggravating circumstance of nocturnity, so that appellant was given only the medium period of the proper penalty as the maximum term of his sentence. As to the fact that the present offense is the first committed by this appellant, suffice it to say that the penalty fixed by the Code is usually for first offenses; for otherwise, the aggravating circumstances of recidivism or of

49 reiteracion (Article 14, Nos. 9 and 10, RPC) would come into play and operate to increase the penalty. DECISION On November 5, 1951, Gaudencio de Joya, Nicanor Reyes, Julian Sumaway, Cesar Manipola, and Ricardo Hornales were charged in the Court of First Instance of Manila with the crime of theft (Criminal Case No. 17088) under the following information: "That on or about the 5th of October, 1951, at night time purposedly sought to better accomplish their ends, the said accused conspiring and confederating together and mutually helping one another did then and there willfully, unlawfully, and feloneously, with intent of gain and without the knowledge and consent of the owner thereof, take, steal and carry away a mooring rope approximately 160 meters, 3 inches in diameter, valued at P4,000, belonging to the United States Lines, to the damage and prejudice of the said owner in the aforesaid amount of P4,000, Philippine currency." (Appellant's Brief, pp. 1-2) Upon arraignment, each of the accused at first pleaded not guilty to charge. On the date of the trial, however, all five defendants, with the assistance of counsel, moved to withdraw their respective pleas of "not guilty" in order to substitute the same with that of "guilty," which motion the Court granted. The accused were then rearraigned, and after having been informed of the nature and consequences of a plea of guilt, all pleaded guilty to the charge. Thereupon, the trial Court rendered judgment sentencing the accused as follows: "IN VIEW OF ALL THE FOREGOING CONSIDERATIONS the Court finds each and everyone of the above-mentioned defendants guilty beyond reasonable doubt of the crime of theft, with the aggravating circumstance of nocturnity but which was offset by the plea of guilty and, therefore, sentences each and everyone of them to suffer an indeterminate penalty ranging from four (4) months of arresto mayor as minimum to one (1) year, eight (8) months and twenty-one (21) days of prision correccional as maximum, with the accessory penalties prescribed by the law, and to pay the costs. No indemnity was awarded to the complainant, The United States Lines, in view of the manifestation of the prosecution made in open court, that the property stolen was recovered." (Appellant's Brief, Appendix, pp. 9-10) From this judgment, one of the defendants, Ricardo Hornales, appealed to this Court, questioning the correctness of the minimum period of his penalty. Appellant admits that the maximum term of his sentence is correct. He likewise admits that its minimum term (4 months of arresto mayor) is within the range prescribed by the Indeterminate Sentence Law in this case, which is arresto mayor in its minimum and medium periods, or from 2 months and 1 day to 4 months. His only argument in support of the appeal is that (1) the properties stolen having been recovered, (2) this being his first offense, and (3) he having pleaded guilty to the charge, which shows repentance for his act and lack of perversity in defying the law, the lower Court should have imposed upon him as the minimum of his indeterminate sentence, the lowest range of arresto mayor, which is 2 months and 1 day. We see no reason to disturb the judgment of the Court below with respect to the minimum of appellant's penalty. The determination of the minimum term of the indeterminate sentence within the range provided by law is left entirely within the discretion of the trial court, and this discretion should not be interfered with

50 except in case of abuse. Appellant's arguments fail to show any such abuse. The fact that the properties stolen were recovered merely exempts appellant from civil liability, but has no bearing on the determination of his penalty; while his plea of guilt is required to be considered (by way of mitigation) only in the imposition of the maximum term of his sentence, and in this case, it had already been taken into account as offsetting the aggravating circumstance of nocturnity, so that appellant was given only the medium period of the proper penalty as the maximum term of his sentence. As to the fact that the present offense is the first committed by this appellant, suffice it to say that the penalty fixed by the Code is usually for the first offense; for otherwise, the aggravating circumstances of recidivism or of reiteracion (Article 14, Nos. 9 and 10, RPC) would come into play and operate to increase the penalty. The minimum penalty of appellant's sentence being within the range fixed by law, the same should be, as it is hereby, affirmed. Wherefore, the judgment appealed from is affirmed, with costs against appellant Ricardo Hornales. So ordered.

[G.R. Nos. L-8904-05. December 28, 1956.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EPIFANIO MANABAT, defendant-appellant. SYLLABUS 1. EVIDENCE; WITNESS; CREDIBILITY; TO IMPEACH THROUGH CROSS-EXAMINATION. The imputation that a witness is partial in his testimony such claim or contention should be brought in the cross examination to impeach his credibility. In the absence of such impeachment, his testimony must be taken as any other testimony with the presumption of truthfulness as it was given under oath. DECISION This is an appeal from a judgment of the Court of First Instance of Nueva Ecija, finding Epifanio Manabat, guilty of robbery in band in G. R. No. L-8904 and of murder in G. R. No. L-8905, sentencing him in the first case to 12 years, 5 months and 1 day of reclusion temporal, to indemnify Mayor Villaroman in the sum of P17,500, and to pay the costs, and in the second case, to reclusion perpetua, to indemnify the heirs of Teofila Puno in the sum of P6,000, and to pay the costs. The above cases were heard in a joint trial and upon two separate informations. Only one brief was filed by counsel for accused- appellant in both cases. The incidents giving rise to the two criminal actions above- mentioned occurred in the town of Licab, province of Nueva Ecija, soon after liberation, on the 13th day of November, 1945, when a period of confusion and chaos still reigned in the provinces of Central Luzon. According to two witnesses for the prosecution, Alfredo Marquez and Buenaventura Liwag, both members of the Pambansang Kaisahan ng mga Magbubukid (PKM), an association of peasants in Central Luzon allied to the Hukbalahaps, in the afternoon of November 12, 1945, a gathering of members was held in Barrio Villarosa, near an irrigation dam about half a kilometer away from the poblacion of Licab. Among the persons who appeared at the meeting were accused-appellant Epifanio Manabat, known as Malvar, chief of the organization, Faustino de la Cruz, alias Magpayo, Ismael Magiduyos alias Montenegro, another minor leader known as Balagtas, and many others. It was agreed in that meeting that Mayor Ernesto Villaroman of

51 Licab would be robbed as he is an enemy of the PKM and did not like to support Juan Feleo's government. The following evening (November 13, 1945), at about 10:00 o'clock, around 200 persons headed by the said Malvar, Magpayo, Balagtas and Montenegro, many of whom carried firearms, surrounded the house of Mayor Villaroman. The house is a two-story edifice and is built beside a road. From this road the Mayor was called to come down. Villaroman peeped through the window and recognized the leaders of the band, among whom was the accused-appellant Malvar and Magpayo. He did not, however, heed their call and so various shots were fired at the house. Villaroman took his firearm and fired back. Then he ran downstairs to the groundfloor of the house and from a hole near a door under the house he watched the door of the ground floor then being forcibly opened. As the door was opened, he recognized three who entered the house, namely, the appellant Epifanio Manabat alias Malvar, and Faustino de la Cruz, alias Magpayo and Balagtas. Villaroman hid himself in the hole and then escaped through an undisclosed door at the back of the house where there was an engine. From there he heard those who had gone up, ransacking the house. He also heard the shouts of his wife, protesting her being brought down. The house was ransacked, jewelries were taken. Clothes being sold by Villaroman's wife were also taken, and so were the shoes and clothes of Villaroman, as well as cash that he had in the house, amounting to about P4,000. The jewelries were worth P10,000; his shoes, P200, and the clothes, P300. The booty was put in sacks and carried down and afterwards put inside a carretela and carried away. The band that carried down Villaroman's wife conducted her to the fields, with Malvar and others behind her. When they reached the house of one Valdez accused-appellant suddenly gave the order to shoot her, and his men shot her and she fell down dead. That was when MPs were coming, so Malvar ordered his men to run away. Upon examination of the dead body of Mrs. Villaroman it was found that there were ten wounds in her chest and in the lower part of the abdomen. The bullet wounds had powdered burns around, which indicate that the shots had been fired at close range. There was a military police (MP) detachment in the town of Licab on that occasion, but it was composed of only 15 members. They were closely hidden in their barracks and did not dare to go out. Villaroman, pretending to be one of the members of the band that surrounded his house, was able to pass unidentified among them, and he succeeded in joining the MPs in their barracks. The identity of accused-appellant Epifanio Manabat as the leader of the band was testified to by Alfredo Marquez and Buenaventura Liwag. He was also identified by Mayor Villaroman as the latter peeped through the window, and as Manabat entered the door of the ground floor of the house. It is interesting to note that the first complaint was filed by the Chief of Police on November 14, 1945. The complaint was for robbery with homicide. Subsequently, on November 20, 1945, two informations were filed in substitution of the first, one for robbery in band and another for murder. The information for murder contains no allegation as to the commission of the crime of robbery in band, just as the information for robbery in band contains nothing about the murder which was perpetrated on one of the inmates of the house which was robbed. The trial started in February, 1946, but the same was suspended with respect to appellant Manabat because he and some of his co-accused were able to escape from prison, and appellant was not apprehended again until the month of July, 1951, when the

52 hearing was resumed. Separate and independent trials were held with respect to other accused, but as to appellant trial was continued in 1951 and decision rendered on January 13, 1954. The defense presented by the defendant-appellant is an alibi. He also sought to discredit the testimony of prosecution witness Liwag, who was introduced by the defense to testify that the testimony given by him for the prosecution and against the appellant was false. He declared that his testimony against the appellant was induced by the promise of Mayor Villaroman to give him one sack of rice and P30 in cash. He further stated that on November 13, 1945, a political meeting was held at the "glorietta" of Quezon, Nueva Ecija, on which occasion appellant Manabat was present. Atty. Jose Cando also testified for the defense and declared that the defendant-appellant attended the political meeting of his in the municipality of Quezon, province of Nueva Ecija, on November 13, 1945; that witness arrived at the place of the meeting at about 6:00 o'clock in the afternoon, and that upon ascending the grandstand he saw accused Manabat among the members of the band; that witness began delivering his speech at about 8:00 o'clock in the evening and was through at about 9:00 o'clock, and at this time he heard shots from a nearby municipality, and while he heard these shots he still saw appellant Manabat at the grandstand; and that Manabat did not leave the grandstand till 9:00 o'clock that evening. As to the recanting of the testimony by witness Liwag, we can do nothing better than cite Our decision, per curiam, in G. R. No. L- 6939, People vs. Ubia, promulgated on August 31, 1955, where we stated that: ". . . it would be a dangerous rule for courts to reject testimonies solemnly taken before the courts of justice simply because the witnesses who had given them later on change their mind for one reason or another, for such a rule would make solemn trials a mockery and place the investigation of truth at the mercy of unscrupulous witnesses. . ." Even disregarding the testimony of Liwag, we still have the testimonies of Marquez and Villaroman as to the identity of the accused-appellant as the leader of those who attacked the house of Villaroman on the evening in question and thereafter entered it. As to the testimony of Atty. Jose Cando, which might be believable in view of his position as a lawyer and a political leader in the community, to the effect that appellant was present at 9:00 o'clock in the evening of November 13, 1945, at a political meeting in Quezon, a neighboring town, the mere presence of appellant at said meeting does not preclude the possibility and probability of his having joined, after said meeting, the attack on the house of Villaroman, as the attack must have taken place later in the night. Liwag testified that the members of the band were deployed around the house of Mayor Villaroman between 10:00 o'clock and 11:00 o'clock in the evening, on the day in question. For his part, Mayor Villaroman stated that he first heard the defendantappellant calling for him at about 8:00 or 9:00 o'clock in the evening. In another part of his testimony, he stated that the Huks went away between 10:00 o'clock and 11:00 o'clock in the evening. In view of the attack on the house of Mayor Villaroman, the members of the band could not have stayed in Licab for a long time, in view of the possibility of soldiers coming to the rescue of the beleaguered mayor. According to Mayor Villaroman the MPs of Guimba in fact arrived at around 11:00 o'clock in the evening when the Huks had gone. The attack must, therefore, have taken place after 9:00 in the evening. The mere fact, therefore, that the appellant attended a political meeting in Quezon up to 9:00 o'clock in the evening did not preclude his presence in Licab after 9:00 o'clock, because Licab is only five kilometers from Quezon and is connected thereto by a road. In view of

53 these circumstances, the defense of alibi presented can not be given any weight, especially in view of the positive identification of appellant by two witnesses. Objection is made on this appeal to the procedure of the trial court in not having witness Alfredo Marquez included in the information as required by the Rules. This is not error; witnesses not included in the information may be called to testify. (U. S. vs. Avansado, 37 Phil. 658.) It is further argued that the testimony of said Marquez must have been biased, prejudiced and given with promise of reward. We cannot assume that such partiality has attended the testimony of this witness for the sole reason that he is not included as one of the accused in the case. If such was the claim or contention of appellant, this matter should have been brought out in the cross- examination to impeach the credibility of witness. In the absence of such impeachment, his testimony must be taken as any other testimony, with the presumption of truthfulness as it was given under oath. Another objection against the decision is that the judge who rendered it could not possibly have read all the transcripts of the stenographic notes taken during the hearing, especially those of the testimonies of Alfredo Marquez and Buenaventura Liwag. But contrary to this contention we find that Marquez' testimony was transcribed on March 20, 1947. As to the testimony of Liwag, the date when the notes were transcribed does not appear in the records, but if it was not filed before the decision was rendered it could not have influenced the mind of the court. If the judge who rendered the decision did not read it, at least his subsequent testimony was heard by him, so no objection can be had against the late filing of the said testimony. Claim is made in appellant's brief that there was no evidence as to the property which had been taken away. We believe that these properties were sufficiently identified by the Mayor who testified as to their disappearance after that day. The testimony of Liwag that when the wife of Mayor Villaroman and the band led by appellant reached a certain place near the house of Candida Valdez, the appellant gave an order to his men to shoot her, which they did, sufficiently proves the charge of murder. That it must have been the accused-appellant who gave the order in inferred from the fact that he was the leader of the assaulting band. The presence of the many wounds also indicates that many persons must have fired at her, and this shows that the order for the shooting must have come from the leader of the group, who was then appellant Manabat. This corroborates Liwag's testimony that appellant gave the order to shoot Mrs. Villaroman. For the foregoing considerations, we find that the guilt of the accused-appellant in each of the cases presented against him has been proved beyond reasonable doubt. Finding that the penalty imposed in the murder case is within the range prescribed by law, the same is hereby affirmed. In criminal case No. 173, for robbery in band, the appellant is hereby found guilty of robbery under Article 294, paragraph 5, of the Revised Penal Code, prior to its amendment by Republic Act No. 18, and not robbery in band, as found by the trial court. As the commission of the offense was attended by the aggravating circumstances of nighttime and by a band, the maximum of the penalty should be imposed upon the defendant-appellant, and as he escaped from jail during the pendency of the proceedings, he is not entitled to the benefits of the Indeterminate Sentence Law. The penalty imposed by the trial court is beyond the range provided by law. The sentence is hereby modified and the same is reduced to ten (10) years of prision mayor. With the above modification, the sentence is hereby affirmed in all other respects. Costs shall be against the defendant-appellant.

54

[G.R. No. L-9626. May 22, 1957.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNULFO ALVAREZ, defendant-appellant. SYLLABUS 1. CRIMINAL LAW; ROBBERY IN AN INHABITED HOUSE; PENALTY IMPOSABLE. The crime alleged in the information (robbery in an inhabited house), of which the appellant pleaded guilty, falls under the provision of Article 299 of the Revised Penal Code and penalized thereunder with prision mayor, for the value of stolen property exceeds P250 but the appellant was not armed when he committed the crime. Hence, the proper penalty that should be meted upon him is the minimum period of prision mayor ranging from six years and one day to eight years. Accordingly, and applying the provisions of the Indeterminate Sentence Law, appellant is hereby sentenced to an indeterminate penalty of from two years and four months of prision correccional, as minimum, to eight years of prision mayor, as maximum.

[G.R. No. L-7928. November 29, 1957.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMMA SEVILLA CRUZ, defendant-appellant. SYLLABUS CRIMINAL LAW; PENALTY; INDETERMINATE SENTENCE; IMPOSITION OF PENALTY. Where the penalty prescribed for the offense charged in the information is arrestro mayor in its maximum to prision correccional in its minimum period, its duration is four (4) months and one (1) day to two (2) years and four (4) months. As to the offense in the case at bar was committed without the aggravating or mitigating circumstance, the appellant under the Indeterminate Sentence Law should have been given a penalty of from one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional as maximum and from one (1) month and one (1) day to four (4) months of arresto mayor as minimum. (Article 61, Nos. 4 and 5 and Article 65, Revised Penal Code). The penalty of five (5) months by the trial judge upon the appellant is incorrect and he should be sentenced to suffer a maximum penalty of one (1) year and one (1) day of prision correccional and minimum of three (3) moths of arresto mayor. DECISION Appeal from a decision of the Court of First Instance of Manila. Appellant was charged in said court with a crime of estafa committed according to the information in the following manner: "That in or about and during the period comprised between sometime in the month of March and the 7th day of April, 1952, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously defraud one Carmen Miranda in the following manner, to wit: the said accused received from said Carmen Miranda documents showing ownership by the latter of a house located at 1259 Juan Luna, Tondo, in said city, together with the real-estate tax receipt No. 36314 dated January 2, 1952 for the purpose of securing for said Carmen Miranda a loan on said house in the sum of P500 under the express obligation on her part of turning over the cash amount to be secured as a loan thereof if she was able to do so or to return the documents showing ownership of

55 said house within fifteen (15) days from receipt thereof to said Carmen Miranda; but the said accused, once in possession of said documents by means of which a loan in the sum of P380 was obtained, with intent to defraud and far from complying with her aforementioned obligations despite demands made upon her to do, willfully, unlawfully and feloniously misappropriated, misapplied and converted the sum of P380 which was the amount of the loan secured from Uy Cheuy on said property, to her own personal use and benefit, to the damage and prejudice of said Carmen Miranda and/or Uy Chuey in the aforementioned sum of P380, Philippine currency." Upon arraignment appellant pleaded not guilty but after one witness had testified for the prosecution, appellant declared that she was willing to plead guilty. Thereupon her former plea was set aside and when informed of the charged she pleaded guilty. So the court found her guilty as charged in the information and sentenced her to five (5) months of arresto mayor, with the accessory penalties prescribed by law, to indemnify the offended party in the sum of P380, with subsidiary imprisonment in case of insolvency which shall not exceed one-third of the principal penalty, and to pay the costs. Appellant not being agreeable to this decision has appealed therefrom to this Court. On this appeal counsel de oficio states that after a study of the record he finds no error in the decision appealed from. The Solicitor General, however, argues that the sentence imposed is not in accordance with the Indeterminate Sentence Law. We find this argument to be valid. The Indeterminate Sentence Law provides as follows: "SEC. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." The penalty prescribed for the offense charged in the information is arresto mayor in its maximum to prision correccional in its minimum period. The duration is four (4) months and one (1) day to two (2) years and four (4) months. As the offense was committed without any aggravating or mitigating circumstance the appellant should have been given a penalty of from one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional as maximum and from one (1) month and one (1) day to four (4) months of arresto mayor as minimum (Article 61, Nos. 4 and 5, and Article 65, Revised Penal Code). It was, therefore, incorrect for the trial judge to sentence the appellant to five (5) months. Wherefore, the judgment appealed from is hereby modified and the appellant, sentenced to suffer a maximum penalty of one (1) year and one (1) day of prision correccional and a minimum of three (3) months of arresto mayor. In all other respects the decision appealed from is affirmed.

56 [G.R. Nos. L-6652-54. February 28, 1958.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIEGO COLMAN, ET AL., defendants-appellants. SYLLABUS 1. CRIMINAL LAW; MURDER; CONSPIRACY, HOW PROVED. Conspiracy need not be established by direct evidence of the acts charged, but may and generally must be proved by a number of indefinite acts, conditions and circumstances which vary according to the purposes to be accomplished. If it be proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. 2. ID.; ID.; PREMEDITATION WHEN NOT DELIBERATE, CANNOT BE APPRECIATED AS AGGRAVATING CIRCUMSTANCE. Where no sufficient time has elapsed to give the offenders an opportunity for reflection that the conscience might have conquered the determination of the will, the premeditation is not deliberate, and cannot be appreciated as an aggravating circumstance. 3. CRIMINAL PROCEDURE; ARRAIGNMENT NOT REQUIRED IN THE JUSTICE OF THE PEACE COURT. The accused contend that they have not been accorded their rights under the due process of law of the Constitution because they were arraigned in the Justice of the Peace Court without the company of their attorney, and that before the Court of First Instance there was no arraignment whatsoever. Held: The law does not require arraignment before the Justice of the Peace Court which conducts merely the preliminary investigation. 4. ID.; ID.; PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTIES. The decision of the trial court contains a statement that the accused changed his previous plea of not guilty to one of guilty after the presentation of the evidence of the prosecution. From this statement, it could be deduced that there has been an arraignment in the manner prescribed by law. There is presumption of regularity in the performance of official duties. 5. ID.; DOUBLE JEOPARDY; WHEN PLEA MAY BE ENTERTAINED. The plea of double jeopardy can be entertained only at any time before judgment is rendered and judgment is meant here not the final judgment as rendered by the Court of last resort in case of appeal, but the judgment of the trial court. The defense of double jeopardy cannot be raised for the first time on appeal. 6. CRIMINAL LAW; INDETERMINATE SENTENCE LAW NOT APPLICABLE TO PERSONS CONVICTED OF CAPITAL OFFENSES. The provisions of the Indeterminate Sentence Law are not applicable to persons convicted of offenses punished with death, like the crime of murder. (Sec. 2 Act 4163, as amended by Act 4225.) DECISION The facts of these three cases, as narrated by the prosecution, are as follows: Buenaventura Ganzon had a ricemill in the Municipality of Pototan, Iloilo, and from 1949 to around December 15 or 20, 1951, he employed his neighbor Diego Colman as a watchman in the mill, their houses being only 7 meters apart on the same side of San Jose Street close to where it intersects the railroad track. On or

57 about December 15 or 20, 1951, Diego Colman, sensing that he would be dismissed, told his employer that he wanted to resign and so he returned the key to the ricemill. Diego felt his impending dismissal because his relation with Buenaventura had deteriorated to such an extent that he believed Ganzon wanted to get rid of him. Ganzon was informed that Diego Colman was not only "backbiting" him, but even wanted to rape one of his daughters. Ganzon had no misunderstanding with the other accused, Alfredo Pilota, but he knew the latter to be in the same gang of Diego Colman. On January 7, 1952, Ganzon employed a new watchman in his ricemill in the person of Alfredo Cardinales. At about 7 o'clock in the evening of that day, Rogelio Colman knocked at the door of Ganzon's house saying that he wanted to see Alfredo Cardinales who was then staying there, and as Rogelio Colman appeared to be nervous, Ganzon advised Alfredo Cardinales not to go out. After 30 minutes, however, another man, Cornelio Parreo, came and said that on orders of Diego Colman he wanted to tell Alfredo Cardinales to go to Diego's house. Buenaventura Ganzon again counselled Alfredo not to go and he told Cornelio Parreo to tell Diego to come to his house if he had some important matters to take up with his watchman. At about 8 o'clock, Buenaventura heard somebody shouting in the dialect that maybe Cardinales was placing so much reliance on Buenaventura Ganzon. Hearing his name mentioned thus, Buenaventura told his watchman to follow him, and they went down the house, Buenaventura saw Diego Colman and Domingo Mainar walking back and forth near his house and also Rogelio Colman who was creeping along at the side of a sari-sari store, armed with a long bolo. Ganzon wanted to ask Diego Colman why he made the remark that Alfredo is placing too much reliance upon him, but just then, Diego Colman went to the sarisari store and called his two sons Rogelio and Reynaldo. When Buenaventura Ganzon heard no more talking, he went home. On his way he met Lisondato. At about 10:15 p.m. Ganzon was already lying down but left on the lights in his room. His wife with their two daughters slept on a bed. Ganzon, however, sensed that something might happen. His wife also felt nervous, but he advised her not to worry. Suddenly, Ganzon heard a rapid firing of shots directed to the place where the watchman was staying in his house, and then towards the room where he and his family were lying down. Ganzon immediately rolled over with his baby boy on the floor. His wife shouted that she was hit. Ganzon told her to lie flat on the floor. Another rapid firing followed. This time Ganzon heard his children crying that they were hit. Ganzon then carried his baby boy to the kitchen and after surrounding the child with some protective covering, he went back to the room for his wife and two children. He lifted his two daughters, took the mattresses and trunks, and told them to lie down and pray. He then took his flashlight and pistol and went down from the kitchen and watched cautiously around. He saw Rogelio Colman crouching just below the side of their house. He went to the railway track and saw and heard somebody calling for Diego. Flashing his flashlight, he recognized the man to be Dmaso Ferraris. Ganzon immediately engaged him in a gun duel and luckily he hit him. He took the pistol of his adversary and ran towards the house of Dr. Silva to get medical aid. On the way he saw Diego Colman, whom he recognized very well by the light of the moon, and he tried to intercept him. As he was approaching Diego Colman, some policemen were also approaching Diego Colman, and the policemen got his pistol. Ganzon went back to the doctor's house telling him that his children were dying. When Ganzon returned to his house, he gave aid to his children who were hit. He then went to the house of the Governor to borrow his car, and with it, he brought his wife and two children to St. Paul's Hospital in Iloilo City. At about 2:30 the next afternoon,

58 Elizabeth, who was 5 1/2 years old died. At about 5:00 o'clock that same afternoon, Thelma, who was 7 1/2 years old, also died. It also appears from the record that at about 8 o'clock in the evening of January 7, 1952, when Domingo Mainar and his wife went out to the railway track near the bridge for some personal necessity, Domingo saw Diego Colman conversing with Cornelio Parreo. Domingo and his wife took different ways, and he saw his wife talking to Diego Colman. Domingo found out later in the house that Diego told his wife that he will kill him for being "rebelde", as well as Ganzon's family. Upon reaching home, they prepared to go to bed with their small children. Their son Antonio Mainar also lay down to sleep. However, Domingo sat by the window and looked outside for what he feared might happen. He saw Rogelio Colman walking by their house. He saw also the small children of Diego Colman being brought down to the other side. He later saw Reynaldo with a bolo going towards the house of Ganzon, below the window, looking around. At around 10:00 o'clock that night, he heard some people conversing at the railway track and recognized the voices of Diego and Reynaldo Colman. Later on, his wife also saw Diego Colman and Dmaso Ferraris conversing near their house when the wife got up to urinate. Diego was telling Dmaso to be the one to open fire, but the latter told the former to do so. Presently, Reynaldo Colman arrived and joined them. He (Reynaldo) posted himself below the house of Ganzon, near the stairs, while Damaso Ferraris went to the railway. Domingo Mainar later saw Rogelio Colman going up to their house and as Rogelio went up, Diego fired shots at Ganzon's house. Rogelio also fired from his house. Later on Diego went back towards the house of Mainar and fired at it twice one of which hit Antonio Mainar. Domingo Mainar then went down to the parking lot and whistled for policemen. Diego was soon placed under arrest. Mainar brought his wounded son to the Emergency Hospital of Pototan, thence to the Provincial Hospital at Iloilo City where he expired at 4:00 o'clock the following morning. It should also be stated that before the shooting, Francisco Pogon and Ireneo Lisondato were watching a mahjong game at a sari-sari store near the market place. When they went out of the store to buy cigarettes, they met Diego Colman who inquired for Alfredo Pilota. Pogon told him he knew where the house of Pilota was, and so on Diego's request, they went there on board a truck. Upon arrival at Pilota's house, Diego alighted and called for Pilota who thereupon went down, carrying a revolver with him. He also had a carbine concealed in his jacket. They proceeded to the parking place of the trucks. Diego went to the market, while Pilota went to the coffee stand. When Diego came from the market, his two sons, both armed, were with him, while Diego himself had a carbine. The group passed for Pilota at the coffee stand, and they all headed towards the house of Ganzon. Stopping first at the middle of the railway track, Diego gave instructions to his companions where to place themselves to accomplish their purpose which was, as Diego revealed, to "kill Ganzon including the watchman and also his cats and dogs." After taking their respective positions as assigned by Diego Colman, shots were heard from the front of Ganzon's house. On the strength of the foregoing facts which were established at the investigation conducted by the authorities, Diego Colman, Reynaldo Colman, Rogelio Colman, Irineo Lisondato, Francisco Pogon and Alfredo Pilota were all charged in four separate informations filed with the Court of First Instance of Iloilo: Case No. 3165 for the murder of Antonio Mainar; Case No. 3166 for the murder of Thelma Ganzon; Case No. 3167 for the murder of Elizabeth Ganzon; and Case No. 3168 for the frustrated murder of the mother of said girls, Carolina L. Ganzon. The aforementioned cases were tried jointly upon agreement of the prosecution and the defense. Before the trial started, the Provincial Fiscal moved for the discharge of the accused Francisco Pogon so that he could be utilized as government

59 witness, which motion was granted by the Court. After the prosecution closed its evidence, the accused Alfredo Pilota changed his previous plea of not guilty to one of guilty, and in a judgment rendered separately, he was sentenced accordingly. The trial continued with respect to the remaining defendants, namely, Diego Colman, his sons Rogelio and Reynaldo Colman and Irineo Lisondato, after which judgment was rendered by the Court as follows: (a) In Criminal Case No. 3165 (G. R. No. L-6652) the accused Diego Colman, Rogelio Colman and Reynaldo Colman were found guilty as principals of the murder of Antonio Mainar with the qualifying and aggravating circumstances of treachery, in which is merged that of nocturnity, and dwelling, respectively, and were sentenced as follows: Diego Colman to suffer the supreme penalty of death; Rogelio and Reynaldo Colman to reclusion perpetua, with the accessories of the law, and all of them to indemnify, jointly and severally the heirs of the deceased Antonio Mainar in the sum of P5,000, and to pay the costs. (b) In Criminal Case No. 3166 (G. R. No. L-6653) the accused Diego Colman, Rogelio Colman and Reynaldo Colman were found guilty as principals of the murder of Thelma Ganzon with the same circumstances already stated and were each sentenced as follows: Diego Colman and Rogelio Colman to suffer the supreme penalty of death; Reynaldo Colman to reclusion perpetua, with the accessories of the law, all of them to indemnify, jointly and severally the heirs of the deceased Thelma Ganzon in the sum of P5,000, and to pay the costs. (c) In Criminal Case No. 3167 (G. R. No. L-6654) the accused Diego Colman, Rogelio Colman and Reynaldo Colman were found guilty as principals of the murder of Elizabeth Ganzon with the same circumstances already stated and were each sentenced as follows: Diego Colman and Rogelio Colman to suffer the supreme penalty of death; Reynaldo Colman to reclusion perpetua, with the accessories of the law, all of them to indemnify jointly and severally the heirs of the deceased Elizabeth Ganzon in the sum of P5,000. and to pay the costs. (d) In Criminal Case No. 3168 the accused Diego Colman, Rogelio Colman and Reynaldo Colman were found guilty as principals for frustrated murder of Carolina L. Ganzon with the same circumstances already stated, and were each sentenced to suffer an indeterminate penalty of from 10 years of prision mayor to 17 years and 4 months of reclusion temporal with the accessories of the law, and to pay the costs. The accused Irineo Lisondato was acquitted in all of the four cases for lack of evidence against him, with costs de oficio. The records do not show that any of the convicted defendants filed a notice of appeal, but pursuant to Rule 118, Section 9 of the Rules of Court the records of cases Nos. 3165, 3166, and 3167 were forwarded to this Court for review of the judgments rendered therein against the defendants who had been sentenced to the capital punishment. For this reason the review of these three cases by this Court is limited to the question of whether the conviction of Diego Colman and Rogelio Colman and the imposition on the first of the death penalty in all said three cases and on Rogelio Colman in G. R. Nos. L-6653 and L-6654 are warranted by the law and the evidence. In this instance, counsel de oficio for these 2 defendants submits that the trial court erred: 1. In holding that your "appellants" (?) were co-conspirators and, consequently, erred in holding them as principals to the crime they are charged with;

60 2. In rendering and promulgating a decision which is contrary to law and jurisprudence, by holding that the aggravating circumstances of treachery, evident premeditation and dwelling were present in the commission of the alleged crimes charged, and by only considering the evidence of the prosecution and not giving any weight to the evidence of your "appellants" (?); and 3. In not acquitting your "appellants" (?) of all the crimes they are charged when they are entitled to acquittal, as their rights under the due process of law, guaranteed by the Constitution of the Philippines, have been violated in that they were arraigned in the Justice of the Peace Court without their attorney accompanying them, and with the filing by the Provincial Fiscal of new informations against them in each of these cases, after they have pleaded "not guilty" before the Justice of the Peace Court on the complaint filed by the Chief of Police of Pototan, Iloilo, and for lack of arraignment on the new information filed by the Provincial Fiscal. At the start We have to declare that in these three cases the facts narrated at the beginning of the decision have been duly established by the evidence of the prosecution. At the hearing Diego Colman denied having taken part in the indiscriminate shooting at the houses of the Ganzons and the Mainars on the night in question, or having conspired in the perpetration of the cold-blooded slaughter of innocent victims. On the other hand, Rogelio Colman, the other defendant, alleged that throughout the night he never left his house because he had headache. In the light of the evidence of the prosecution these defenses cannot be taken seriously. The mere denial by the defendants of acts attributed to them by the witnesses for the State who had no reason to distort the facts upon which they testified, is of no consequence because in such situation the question turns into one of credibility of witnesses and. "The trial Judge that saw the witnesses testify and had opportunity to observe the demeanor and manner of testifying of the witnesses, is in a most preeminent position to gauge their credibility and, consequently, his findings of fact must not be disturbed unless the record shall show that some facts or circumstances of weight or influence have been overlooked, or the significance of which has been misinterpreted by the lower court, or some conclusion established from facts is inconsistent with those findings, or there is some inherent weakness in the evidence upon which the trial judge based his conclusion" (Baltazar vs. Alberto, 33 Phil., 836; People vs. Borbano, 76 Phil., 702, citing many other cases). "Nor will the appellate court reverse any findings of fact by the trial court made upon conflicting testimony and dependent solely upon the credibility of witnesses, unless the court below failed to take into consideration some material fact or circumstance presented to it for consideration" (U.S. vs. Ambrosio, 17 Phil., 295; U.S. vs. Melad, 27 Phil., 488; Melliza vs. Towle, 33 Phil., 345; N. S. vs. Remigio, 37 Phil., 599; People vs. Cabrera, 43 Phil., 64; Carazay vs. Arquiza, 53 Phil., 72; Garca vs. Garca, 63 Phil., 419). Counsel for the accused invokes the defense of alibi, but: This Court has already held in numerous cases that the defense of alibi is the weakest defense that an accused can avail of, and cannot prosper where the accused has been positively and properly identified by the offended party. An alibi should be proved by probable evidence which reasonably satisfied the Court of the truth of said defense (U.S. vs. Oxiles, 29 Phil., 587). Oral proof of alibi must be clearly and satisfactorily established because it is so easily manufactured and usually so unreliable that it can rarely be given credit (People vs. Padilla, 48 Phil., 710 See also People vs. Jose Villaroya, et al., 101 Phil., 1061).

61

We have, therefore, no reason to disturb the findings of the lower Court in the cases at bar. Coming now to the point of conspiracy involved in the first assignment of error and to the contention that the decision is contrary to law and jurisprudence by only considering the evidence of the prosecution and in not giving any weight to the evidence for the defense, which is raised in the second assignment of error, We may say, as held already by this Court, that: "Conspiracies need not be established by direct evidence of the acts charged, but may and generally must be proved by a number of indefinite acts, conditions and circumstances which vary according to the purposes to be accomplished. The very existence of a conspiracy is generally a matter of inference deduced from certain acts of the persons accused, done in pursuance of an apparently criminal or unlawful purpose in common between them. The existence of the agreement or joint assent of the minds need not be proved directly. It may be inferred by the jury from other facts proved. It is not necessary to prove that the defendants came together and actually agreed in terms to have the unlawful purpose, and to pursue it by common means. If it be proved that the defendants pursued by their acts the same object, often by the same means, one performing one part and another part of the same so as to complete it, with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object. If, therefore one concurs in a conspiracy, no proof of agreement to concur is, necessary in order to make him guilty. His participation in the conspiracy may be established without showing his name or giving his description 5 R. C. L.," par. 37, p. 1088 (People vs. Cu Unjieng et al., 61 Phil., 236, 301). "If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. . . . The details of the conspiracy need not be proved. If a community of purpose among the parties to do some criminal act or acts is shown, it is not necessary that the acts which are charged or of which evidence has been given, were specifically contemplated by them or included in the original design. . . . Underhill's Criminal Evidence, p. 795, par. 491 (People vs. Carbonel et al., 48 Phil., 868). "The act of a co-conspirator is attributable to each and every one of his coconspirators." (People vs. Caringan, 61 Phil., 416; People vs. Cu Unjieng, 61 Phil., 236). We entertain no doubt that both Diego Colman and Rogelio Colman conspired together with the other defendants for the commission of the crime they are charged in each of these three cases now before Us. Anent the alleged error committed by the trial Judge in holding that the aggravating circumstance of treachery, evident premeditation and dwelling were present in the commission of the alleged crimes charged (also included in the second assignment), We can cite the following jurisprudence of this Court: Evident premeditation involves cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at some judgment (People vs. Durante, 53 Phil., 363).

62 The aggravating circumstance of known premeditation cannot be appreciated against O, the active agent of the murder, because it does not appear at what time prior to the murder this accused yielded to the inducement held out to him by his co-accused and finally resolved to commit the deed (People vs. Orenciada, 47 Phil., 970). In order to show deliberate premeditation as defined in subsection 7, Art. 10 of the Penal Code (Art. 14, par. 13, RPC), it must affirmatively appear that a sufficient time elapsed between the conception and the perpetuation of the crime, for that calm and deliberate reflection upon the nature and consequences of the contemplated act, as a result of which it might fairly be expected that an aroused conscience would induce a reasonable man to relent, and to turn from the actual commission of the deed, in the absence of a fixed and resolute purpose of mind to accomplish his designs at all costs (U.S. vs. Gil, 13 Phil., 530; U.S. vs. Blanco, 18 Phil., 206; U.S. vs. Nalua, 2 Phil., 1; U.S. vs. Buncad, 25 Phil., 530). It is not necessary that any definite time shall have elapsed between the formation of intention and execution of the crime to show premeditation; it is sufficient if there has been such opportunity for reflection that the conscience might have conquered the determination of the will. Evident means based upon external acts and not presumed from mere lapse of time (U.S. vs. Ricafor, 1 Phil., 173). In order to support the qualifying or aggravating circumstance of premeditation as present in the commission of a crime, the evidence must show that there were meditation and reflection by the accused resulting in a deliberate determination to commit the crime; and where it appears that the conception of the crime was close in point of time to the execution thereof, and the evidence fails to show that he meditated and reflected on his purpose to permit the formation of a deliberate determination, the element of premeditation has not been established beyond a reasonable doubt (U.S. vs. Bahatan, 34 Phil., 695). In the cases at bar, the evidence points to the fact that it was only on January 7, 1952, when Ganzon employed his new watchman Alfredo Cardinales in lieu of Diego Colman who had resigned on December 15 or 20 of the preceding year, and that it was at about 7 o'clock of that same day of January when indications appeared that something was brewing in the minds of the defendants towards the commission of the crimes herein prosecuted which were perpetrated at 10:00 o'clock on the night of that day. Under such circumstances, we do not think that sufficient time elapsed to give the offenders "an opportunity for reflection that the conscience might have conquered the determination of the will", and thus qualify the premeditation as evident. We are, therefore, inclined to disregard, as We do, said aggravating circumstance. This, however, does not affect the penalty imposed by the trial Judge upon the culprits, because treachery as qualifying circumstance and dwelling as aggravating are sufficient to sustain the penalty thus imposed upon them. It is to be noted that the attack of the defendants was sudden, unexpected and when the victims, minor children, were resting in bed in the seclusion of their abode. Counsel for the defense further contends that Diego and Rogelio Colman have not been accorded the rights under the due process of law of the Constitution because they were arraigned in the Justice of the Peace Court without the company of their attorney, and that before the Court of First Instance there was no arrangement whatsoever. Answering this contention the Solicitor General, with whom We agree, says the following: "As far as the arraignment in the Justice of the Peace is concerned, it is not required by law that they should be accompanied by counsel for in the first place,

63 the law does not require arraignment before the Justice of the Peace Court conducting merely the preliminary investigation. In the second place, in the arraignment before the Justice of the Peace Court, the accused entered a plea of not guilty, and such a plea could not have prejudiced them at all. Lastly, through their counsel, the herein appellants waived their right to preliminary investigation. As to whether the appellants were not arraigned in the Court of First Instance, the records do not show any irregularity in the proceedings with respect thereto. On the other hand, the decision contains a statement that in the case of accused Alfredo Pilota, he changed his previous plea of not guilty to one of guilty after the presentation of the evidence of the prosecution. From this statement, it could be deduced that there has been an arraignment in this case in the manner prescribed by law not only with Pilota but the rest of the accused. Indeed, it could hardly be imagined that the presiding judge, now a Justice of the Court of Appeals, could have committed so grave an error as not arraigning the accused properly in cases in which they are charged with capital offenses. With the foregoing facts, considered (in conjunction) with presumption of the regularity in the performance of official duties, defendants' contention that they have not been arraigned in the Court of First Instance falls on its face. As to the plea of double jeopardy, it seems clear from the provision of section 10, Rule 113, of the Rules of Court that such a plea can be entertained only at any time before judgment is rendered, and judgment is meant here not the final judgment as rendered by the Court of last resort in case of appeal, but the judgment of the trial court. The defense of double jeopardy cannot be raised for the first time on appeal (People vs. Mangcal et al., 47 O. G., No. 12 Supp., p. 228; Quintos vs. Director of Prisons, 55 Phil., 304.) Furthermore, even if it were legally possible to entertain a plea of double jeopardy at this stage, there is clearly no double jeopardy at all as counsel contends. The four informations under which the accused were charged were properly filed separately instead of just one information as counsel would have it. From the undeniable physical facts regarding the manner the crime was committed, it cannot be seriously contended that the three killings of these separate victims were committed by one single act on the part of the accused as to call for the filing of just one information. If the three victims died of bullet wounds, it is because those wounds were inflicted not by a single act but by as many acts as there are victims. The filing of separate informations was therefore in order." Wherefore and on the strength of the foregoing consideration, We have no other recourse than to affirm the imposition of the death penalty on Diego Colman in Criminal Case No. 3165 (G. R. No. L-6652); upon Diego Colman and Rogelio Colman in Criminal Case No. 3166 (G. R. No. L-6653); and upon these same two defendants in Criminal Case No. 3167 (G. R. No. L-6654). Consequently, the decision of the lower Court insofar as these two defendants are sentenced to the supreme penalty, is hereby affirmed with costs against them. In the execution of this sentence the provisions of Articles 81, 82 and 84 of the Revised Penal Code shall be strictly applied. It is so ordered.

[G.R. No. L-13569. April 29, 1960.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MAMERTO RESPECIA and SANTIAGO LAGUNAN, defendants-appellants. SYLLABUS 1. PENALTY; OFFENSES PUNISHABLE UNDER SPECIAL LAWS; ARTICLE 64 OF THE REVISED PENAL CODE NOT APPLICABLE.

64 Offenses which are punishable under special laws are not subject to the provisions of Article 64 of the Revised Penal Code. The provisions of the said code regarding the application of the circumstances modifying the criminal liability of the accused are not applicable to special laws (People vs. Ramos, 78 Phil., 392; 44 Off. Gaz., 3288; People vs. Gonzales, 82 Phil., 307; 46 Off. Gaz., 1583). DECISION Found guilty by the Court of First Instance of Surigao of illegal possession of dynamite and sentenced each of the appellants to undergo the indeterminate penalty of three (3) months, arresto mayor, as minimum to one (1) year and six (6) months, prision correccional, as maximum, to pay a fine of P600.00 or serve subsidiary imprisonment in case of insolvency, and not satisfied with the penalty imposed upon them, they appealed from the decision on the ground that the court erred: 1. In not imposing on the accused the minimum straight penalty within the range and between the period of three months to ten months, instead of imposing on them the indeterminate penalty of three months, arresto mayor, as minimum, to one year and six months as maximum, in view of the presence of the mitigating circumstance of their voluntary plea of guilty; and 2. In applying the Indeterminate Sentence Law to the case of appellants and, consequently in imposing the indeterminate sentence of three months minimum to one year and six months maximum. Appellants pleaded guilty when they were arraigned and for this reason they claim that in view of their plea, the trial court should have applied the penalty provided for in Act 2255 as amended by Act 3023, in its minimum period in accordance with Art. 64, paragraph 2, of the Revised Penal Code, which, they allege, is supplementary to special laws. They contend that by virtue of their plea of guilty, they deserve the penalty of three months and ten months, and not that imposed on them by the trial court. Further, they claim that the trial court, should not have applied the Indeterminate Sentence Law, for in doing so it resulted in the lengthening of their sentence. Carefully considered, appellants' contentions are untenable, for, in the first place, offenses which are punishable under the special laws are not subject to the provisions of Art. 64 of the Revised Penal Code, and in several cases we held that the provisions of the Revised Penal Code regarding the application of the circumstances modifying the criminal liability of the accused are not applicable to special laws (People vs. Ramos, 78 Phil., 392; 44 Off. Gaz., 3288; People vs. Gonzales, 82 Phil., 307; 46 Off. Gaz., 1583). As to appellants' contention that because of the application of the Indeterminate Sentence Law, the penalty imposed upon them has been more than it should be, we likewise find not well taken, for the trial court, under its discretion, could have imposed even a longer penalty of from three months to two years, it appearing that the penalty provided by law for illegal possession of dynamite is imprisonment of not less than three months and not more than two years. The penalty in question is therefore within the legal range and we find no reason for modifying it. Appellants invoke, however, the doctrine laid down in People vs. Nang Kay, 88 Phil., 515, wherein it was held that the Indeterminate Sentence Law should not be applied if it would lengthen the penalty of the accused, but evidently the said doctrine has no application to the case at bar because herein the court has imposed

65 a shorter sentence than what it could mete out to the appellants. On the other hand, in the recent case of People vs. Felicisimo Aguipo, July 31, 1958, we affirmed the penalty of two to five years' imprisonment imposed by the trial court in a case of illegal possession of firearm for the reason that the penalty thus imposed was within the legal range. Accordingly, we find no reversible error committed by the trial court as pointed out by the appellants; if at all, the error of the trial court was in qualifying the imprisonment imposed on the accused of three months as arresto mayor and of one year and six months as prision correccional, terms which are peculiar to the crimes punished by the Revised Penal Code and not applicable to crimes punished by special laws. Consequently, the penalty imposed upon the appellants should be considered as three months to one year and six months imprisonment. Wherefore, with the modification above-stated, the judgment appealed from is hereby affirmed in all other respects, with costs against the appellants.

[G.R. No. L-21735. January 30, 1965.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE IGNACIO Y SANTOS, defendant-appellant. SYLLABUS 1. CRIMINAL LAW; PENALTIES; MITIGATING CIRCUMSTANCE NOT CONSIDERED IN FIXING MINIMUM OF INDETERMINATE SENTENCE. The mitigating circumstance of plea of guilty should not be considered in determining the minimum of the defendant's indeterminate sentence. 2. ID.; DISCRETION OF COURT TO FIX MINIMUM TERM OF INDETERMINATE SENTENCE. In the absence of abuse, the discretion of the court a quo to fix the minimum term of the indeterminate sentence anywhere within the range provided by law, will not be interfered with. DECISION An information for estafa thru falsification of a commercial document a Philippine National Bank check for P4,608.62 was filed on December 29, 1961 against Jose Ignacio y Santos. When arraigned on August 31, 1962, Jose Ignacio y Santos pleaded guilty. Thereupon the Court of First Instance of Manila sentenced him "to suffer one (1) year. eight (8) months and one (1) day of prision correccional, as minimum, to four (4) years, nine (9) months and eleven (11) days of prision correccional, as maximum; to indemnify the Philippine National Bank in the sum of P4,608.62; and to pay a fine in the sum of P3,000.00, with subsidiary imprisonment in case of insolvency of both indemnity and fine, and the costs of the proceedings." Not satisfied with the penalty imposed, the accused filed a motion for reconsideration, but it was denied. Thereafter he appealed to the Court of Appeals. By resolution of July 25, 1963, the Court of Appeals has certified the case to this Court because "the only question for determination is one of law". Appellant, as stated, pleaded guilty to the complex crime of estafa thru falsification of a commercial document. The penalty for estafa where the amount involved is P4,608.62 is arresto mayor in its maximum period to prision correccional in its minimum period (Art. 315, par. 1, No. 3, Revised Penal Code).

66 The penalty for falsification of a commercial document is prision correccional in its medium and maximum periods and a fine of not more than 5,000 pesos (Art. 172, par. 1, Revised Penal Code). So, for the complex crime afore-stated, the penalty is that provided for falsification of a commercial document, the same to be applied in its maximum period (Art. 48, Revised Penal Code). Applying the Indeterminate Sentence Law, the minimum of the indeterminate sentence should be "within the range of the penalty next lower to that prescribed by the code for the offense" (Sec. 1, Act No. 4103 as amended by Act No. 4225). In People vs. Mape, 77 Phil. 809, 811, we said: "For purposes of the Indeterminate Sentence Law, the penalty next lower should be determined without regard as to whether the basic penalty provided by the Code should be applied in its maximum or minimum period as the circumstances modifying liability may require (People vs. Gonzales, 73 Phil. 549). The basic penalty that the Code provides in this case is, as aforesaid, prision correccional in its medium and maximum periods. The penalty next lower to it, therefore, is arresto mayor in its maximum period to prision correccional in its minimum period; which is four (4) months and one (1) day to two (2) years and four (4) months. Thus, the minimum of the sentence imposed by the court a quo, that is, one (1) year, eight (8) months and one (1) day of prision correccional, is within the range prescribed by the Indeterminate Sentence Law. In the absence of abuse, and appellant has not shown any, the discretion of the court a quo to fix the minimum term of the indeterminate sentence anywhere within the range provided by law, will not be interfered with (People vs. De Joya, 52 O.G. 788). Since appellant admits that the maximum term of his sentence is correct, there is no need to state the reasons why it is so. We may, however, mention that in fixing the maximum term of the sentence, the court a quo rightly considered in appellant's favor the simple mitigating circumstance of plea of guilty. Appellant's error lies in contending that, contrary to what has been held in People vs. Mape, supra, the mitigating circumstance should also be considered in determining the minimum of his indeterminate sentence. As to the fine of P3,000.00, the same is obviously in order. Article 172, paragraph 1, of the Revised Penal Code provides, in addition to imprisonment, "a fine of not more than P5,000 pesos". WHEREFORE, the judgment appealed from is hereby affirmed, with costs. So ordered.

[G.R. No. L-22087. November 15, 1967.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MAURICIO LABIS and ISABELO CABILES, defendants-appellants. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY OF; FINDINGS OF THE TRIAL COURT THEREON GENERALLY NOT DISTURBED ON APPEAL. The rule is that unless appellants satisfactorily show that the trial court overlooked, misunderstood or misapplied some fact or circumstance of weight and substance as would offset the results of the case, the appellate court will not disturb said court's findings especially when the same are based on the evidence.

67

2. ID.; ID.; ID.; PROBATIVE VALUE OF TESTIMONY OF WITNESSES. Appellant's submission that prosecution witnesses were not present in the scene of the crime is without merit where they based their claim on the testimonies of their witnesses whom the lower court found devoid of credibility. The negative testimonies of these witnesses cannot prevail over the positive statements of the prosecution witnesses. 3. ID.; ID.; ID.; LONE TESTIMONY OF PROSECUTION WITNESS SUFFICIENT TO SUSTAIN APPELLANTS' CONVICTION IN CASE AT BAR. Masong's lone testimony is sufficient to sustain appellants' conviction. The fatal stabbing of the decedent occurred just about five meters away from him. No improper motive has been shown why he would impute actuations of serious consequences against appellants. The more flaws in his testimony have been satisfactorily explained. 4. CRIMINAL LAW; MURDER; TREACHERY QUALIFIES THE OFFENSE WHERE DECEDENT WAS DEFENSELESS. The killing of the decedent was qualified by treachery. It has been clearly established that the victim was being held firmly by appellant Cabiles thereby preventing the former from moving or making any defense when Labis struck him from behind with a bolo. There was hardly, if any, risk at all for Labis; the decedent was defenseless. Appellant Labis is liable for murder. 5. ID.; ID.; PRINCIPAL BY INDISPENSABLE COOPERATION ALSO LIABLE FOR MURDER; CASE AT BAR. It has been sufficiently established that appellant Cabiles seized the running decedent in such a manner that the latter could not even move or turn around. This enabled the pursuing Labis, who was armed with a drawn bolo and was barely five meters away from the decedent, to finally overtake him and stab him at the back with hardly any risk at all. Cabiles therefore performed another act holding the decedent without which the crime would not have been accomplished. This makes him a principal by indispensable cooperation. Consequently, appellant Cabiles is also liable for murder. 6. ID.; ID.; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER APPRECIATED IN CASE AT BAR. Voluntary surrender mitigates the crime where instead of running away the offenders voluntarily went with the policemen who took them into custody. 7. ID.; ID.; IMPOSABLE PENALTY; APPLICATION OF INDETERMINATE SENTENCE LAW IN CASE AT BAR. With no aggravating circumstances to offset voluntary surrender, the penalty for murder reclusion temporal maximum to death in the minimum period, which is reclusion temporal maximum is imposable. Since the resulting penalty is neither death nor life imprisonment, the Indetermine Sentence Law applies. Appellants are therefore entitled to an indeterminate sentence, the maximum term of which is reclusion temporal maximum the penalty to be imposed in view of the mitigating circumstance of voluntary surrender - and the minimum term which is one (1) degree lower from the penalty prescribed by the Code for murder is anywhere from ten (10) years and one (1) day of prison mayor maximum to seventeen (17) years and four (4) months of reclusion temporal medium. DECISION Mauricio Labis and Isabelo Cabiles are appealing from a judgment of conviction for murder. The two were, on February 29, 1960, charged by the provincial fiscal

68 for the killing of the deceased Clarito Fabria in Barrio Taytay, Municipality of El Salvador, Misamis Oriental. After trial, the Court of First Instance in Misamis Oriental sitting at Cagayan de Oro City, on September 12, 1963, found both accused guilty as charged and sentenced each to "suffer the penalty of RECLUSION PERPETUA, to indemnify the heirs of the victim Clarito Fabria in the sum of P6,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs." The prosecution, relying mainly on the testimonies of two eyewitnesses Vidal Masong and Ahenor Pagasihan and that of Dr. Megdonio Bacal, attending physician, established the following: At about 3:00 p.m. on August 1, 1959, in Barrio Taytay, Municipality of El Salvador, Misamis Oriental, appellant Labis, with a bolo, chased the deceased Clarito Fabria near the national highway. When the latter happened to pass by a coconut tree, appellant Cabiles who was standing there, grabbed him and Locked his arms around the shoulders of Clarito Fabria, with Cabiles' chest pressing against the right shoulder of Clarito. This enabled Labis to overtake Clarito Fabria and thereupon, the former stabbed the latter with the bolo at his back. Appellant Cabiles then released the deceased who, badly wounded, tried to run further towards his father's house. Later, Clarito Fabria was brought for treatment to the provincial hospital at Cagayan de Oro City, where he died two hours later. The attending physician, Bacal, found an opening stab wound, about three inches long, at the back lumbar region, middle, which deviated laterally to the left, and causing an exit wound of none inch in front, at the left iliac region (lower abdomen). 1 Dr. Bacal also testified that the two wound could have been caused by a bolo and that the decedent's death was due to profuse internal hemorrhage resulting from multiple perforation of the sigmoid and mysentery of the intestine, organs usually found on the left of the abdominal cavity. The defense narrated the events differently. According to appellants Labis and Cabiles and three of heir alleged eyewitnesses, what transpired was this: On the morning of August 1, 1959, Labis and Cabiles with several of their barriomates attended a community group work, locally known as "pahina", at the public school compound. About noontime, they all proceeded to the wedding party at Pedro Estrada's house where the deceased and the latter's brother-in-law, Raul Espejon, were also present. Lunch over, the group left the place together at the invitation of the decedent and Espejon. On the way home, the two walked ahead while Labis, Cabiles and the rest followed about 20 meters behind. As the decedent Fabria and Espejon neared the national highway, the latter stopped near a coconut tree. As appellant Labis approached, Espejon confronted him with a bolo, asking whether he had a grudge against Clarito Fabria. Labis answered that they ought not to fight as they were brothers. Sensing trouble, Francisco Labis, a third degree cousin of Mauricio Labis, intervened and advised the two not to fight. Raul Espejon then repaired towards the nearby house of Dionisio Gaid and Labis with the others went their way. At this moment, Clarito Fabria, brandishing a bolo, came running towards them and asked Labis if the latter had any grudges against him. Labis retreated with upraised hands and endeavoured to pacify the deceased by calling him brother and pleading that they should not fight. Clarito answered by slashing his bolo at Labis who, in trying to parry the blow, was wounded on his left wrist. Labis retreated further but Raul Espejon reappeared on the scene and boloed Labis at the nape,

69 wounding him also. Appellant Labis then turned to face Espejon when Clarito Fabria hurled his bolo at him with the handle-end thereof hitting Labis on the breast. The decedent now bent down to pick up the bolo which fell by Labis' left side but the latter immediately warded off Clarito's hands. This caused the decedent to turn half-way to his right, exposing his left flank to Labis. Instantly, Labis drew his own bolo from the waist and thrust it at the decedent's back, at the left side of the lumbar region on the level of the pelvis. Clarito Fabria then ran away wounded towards Dionisio Gaid's house. A few moments later, policeman Maximo Gallego, who had fired several shots upwards while still at a distance, arrived at the scene of the incident and Labis surrendered to him the bolo (Exh. C, also marked as Exh. 12) he used in stabbing Clarito Fabria and also the bolo (Exh. 14) which the latter allegedly hurled at him. Policeman Gallego placed Labis and Cabiles under custody and then went after Raul Espejon in the house of Hugo Fabria and got Raul's bolo. Still later, Gregorio Salas, the Chief of Police of El Salvador, arrived and brought appellants Labis and Cabiles to the municipal building for investigation. Appellant Cabiles denied having held the decedent Clarito Fabria as testified to by the prosecution witnesses. He claimed that when the deceased confronted Labis with a drawn bolo, he (Cabiles) and Francisco Labis stood between the protagonists and tried to pacify them and prevent a fight. However, when Clarito Fabria threw his bolo at Labis, Cabiles retreated about four meter away since he was afraid that Clarito carried a dagger also which he might use. As between the two conflicting versions, the trial court upheld the prosecution's and rejected that of the defense. And We quote the findings and conclusions of said court: "At first blush the theory advanced by the defense would seem foolproof but a closer examination of the same reveals weaknesses that cannot stand the test of judicial scrutiny. The defense witnesses, either close friends or relatives of the accused gave evidently well- rehearsed testimonies likely to mislead the gullible and unsuspecting person. However, a careful evaluation of their version of the incident would show its inconsistency with the natural course of events and human conduct. For instance, their claim that the accused Mauricio Labis delivered the fatal blow at the back of Clarito Labis while they were embracing each other and as the latter was about to pick up his bolo from the ground, is not borne out by the position and direction of the wounds of said victim. Their observations do not also coincide because one declared that Mauricio Labis pushed aside Clarito Fabria instead of embraced him as two others testified. Some even asserted that Clarito Fabria was hit on the left side of his back which is not true. "The finding of Dr. Megdonio Bacal, the examining physician at the Provincial Hospital of Misamis Oriental, located the entrance wound of about 3 inches in length at the back of Clarito Fabria across the lower portion of his spinal column, and the injury deflected laterally towards his left front side below the waistline causing an exit wound of about an inch in length (Exhs. 'B', 'B-1' and 'B-2'). Since it is admitted that the accused Mauricio Labis, who is right- handed, used the bolo, Exh. '12' about two feet long, pointed and wide at its middle, by no stretch of imagination could the wound have followed such a course, irrespective of whether said Clarito Fabria was slightly bending to pick up his weapon or in a standing position locked in an embrace with said accused as the defense tried to picture during the re-enactment of the incident in open court. The wound should have come out on the right side of the deceased if the accused was in front of him when he delivered the fatal thrust. The only plausible hypothesis deducible from

70 the position and direction of the wounds of Clarito Fabria is that it was inflicted by a right-handed assailant who was either directly behind him or towards his right side. Such circumstances, therefore, lend color of truth and bear out the testimonies of the prosecution witnesses that Mauricio Labis stabbed Clarito Fabria from the back as Isabelo Cabiles was holding the deceased. It must be remembered, however, that according to the defense witnesses themselves, Clarito Fabria was more robust and stronger in build then the accused Mauricio Labis so that he could not have been easily bested by the latter. But as the defense would put it, the encounter involved Clarito Fabria and his brother-in-law Raul Espejon on one side against Mauricio Labis alone on the other, and if that is true, the latter must be a superman to have come out of the struggle practically unscathed. "Furthermore, it would seem odd if not contrary to human behavior for Clarito Fabria to have hurled his own weapon at Mauricio Labis in the course of their armed struggle and endeavor again to retrieve it knowing that Mauricio Labis was also provided with a bolo. The court cannot also conceive why the wound of Mauricio Labis on his left forearm allegedly caused by the thrust of Clarito Fabria's bolo appeared small and superficial, involving only the skin, and that on his nape only an abrasion, although it was supposedly produced by a slash administered by Raul Espejon with another bolo, considering the sharpness of the weapons used and the strength of the blows delivered as described by the witnesses for the defense. Certainly, a potent bolo like the one allegedly used by Raul Espejon would not have produced just an abrasion which according to medical science may be caused by mere rubbing of the skin against a hard object. Likewise, the arm wound of Mauricio Labis would have been bigger or deeper because the bolo (Exh. '14') allegedly used by Clarito Fabria is not only sharp but also double-edged at its point. "The court, nevertheless, is inclined to believe that the deceased Clarito Fabria was not provided with a bolo at the time because he came from the wedding party in the house of Pedro Estrada and the accused themselves observed him carry none while they were yet there. On the other hand, Mauricio Labis admitted having brought his bolo along and declared that Isabelo Cabiles also carried a bolo as both of them came from the 'pahina' (group labor) at the school house. Isabelo Cabiles, nevertheless, denied having a bolo at that time, but Francisco Labis and Dionisio Gaid declared that he was also provided with a bolo. "It is very probable that one of the bolos delivered by Mauricio Labis to patrolman Gallego may be that of the accused Isabelo Cabiles and Gallego's testimony about the ownership of that bolo by Clarito Fabria is unworthy of credence because of his affinity to said Mauricio Labis by marriage. "The testimonies of Dionisio Gaid and Demosthenes Dadolo are not entitled to belief as is that of the Chief of Police Gregorio Salas because it appears that these witnesses were never investigated by said Chief at all although according to him, he saw them there immediately after the incident and he went back to the place the next day to look for eyewitnesses but could only find the prosecution witnesses Ahenor Pagasihan, Vidal Masong and Simplicio Martinez. Moreover, if the Chief of Police believed that Isabelo Cabiles did not have any participation in the killing why did he include him as one of the accused in his amended complaint filed before the Justice of the Peace of El Salvador on August 7, 1959? But the actuations of said Chief of Police in connection with this case are susceptible of suspicion for his failure to take immediate steps to insure the testimonies of eyewitnesses to the incident before they had a chance for reflection." 2

71 In their first three assignments of errors, appellants assail the above findings and conclusions and would have this Court believe their witnesses whom the trial court discredited rather than the prosecution witnesses. The issue posed then is one of credibility of witnesses. And the rule is that unless appellants satisfactorily show that the trial court overlooked, misunderstood or misapplied some fact or circumstance of weight and substance as would offset the results of the case, the appellate court will not disturb said court's findings especially when the same are based on the evidence on record. 3 Appellants here failed in that task. They merely harped on the requisites of selfdefense and casually excused the inconsistencies in the testimonies of their witnesses as "immaterial." Their theory of self-defense is negatived by the nature and location of the victim's wounds which, having a right-to-left direction, could not have possibly been inflicted by a right-handed person in front of the victim with a two-feet long bolo. Moreover, it appears highly improbable that appellant Labis suffered no serious cut wound, 4 as per the medical certificate Exh. 8, altho the defense witnesses uniformly testified that Labis was slashed at the wrist with a sharp bolo by the decedent, and on the nape with a similar lethal instrument by Raul Espejon. Appellant Cabiles was even emphatic that he saw blood oozing from Labis' nape. 5 Having advanced self-defense, the burden was on appellant Labis to justify the killing of the decedent by clear and convincing evidence. And the trial court having discredited his witnesses, it was further his duty in this appeal to prove the lower court in error. Unfortunately, appellant has submitted no cogent reason for Us to disregard the trial court's findings and conclusions which are all based on the evidence on record. Altho motive need not be considered anymore on account of the positive identification of the accused, 6 yet contrary to appellants' insistence, there is ample proof of motive. Reuben Bajuyo testified 7 that on July 23, 1959, appellant Labis and one Isaias Bahian went to his house looking for the decedent to kill him for having stolen his (Labis') chicken. The trial court did not disbelieve Bajuyo's testimony but rather held it insufficient to establish evident premeditation. Appellant's next submission that prosecution eyewitnesses Pagasihan and Masong were not present in the scene of the crime is without merit. They base their claim on the testimonies of their witnesses whom the lower court found devoid of credibility. Moreover, the negative testimonies of these witnesses cannot prevail over the positive statements of said prosecution witnesses. However, the testimony of prosecution witness Pagasihan cannot be given full credit in view of its serious contradiction with his sworn affidavit, Exhs. 5 and 5A wherein Pagasihan claimed to have seen only the chasing of Raul Espejon by Rufo Labis and that in the fight between Mauricio Labis and the decedent, appellant Cabiles did not hold the decedent but even tried to stop the fight. Of course Pagasihan, when confronted with said affidavit, repudiated it and claimed that he . was bribed and threatened into signing it by appellant Labis. 8 Still, Masong's lone testimony is sufficient to sustain appellants' conviction. 9 The fatal stabbing of the decedent occurred just about five meters away from him. 10 No improper motive has been shown why he would impute actuations of serious consequences against appellants. The more flaws in his testimony he satisfactorily explained, thus: altho he also saw the chasing of Raul Espejon by Rufo Labis, he did not mention that fact anymore in his direct testimony since it was not the subject of the case being tried, a point which was also noted by the trial court. 11 Masong stated that as of the date when he was testifying he could no longer remember the exact amount of Asuncion Fabria's debt which he was trying to collect since it was only a little account from his sari-sari store. 12 He was not

72 able to collect from Asuncion that day since the door of her house was closed and because of the stabbing incident that happened in his presence. 13 The reason why he saw no policemen in the scene of the crime and why he was not investigated there, was because he immediately went home after the incident 14 and Masong did not tell his wife about the stabbing since he did not want her to get nervous. 15 His defense of justified killing unsustainable, appellant Labis must suffer the consequences for his unlawful act. The killing of the decedent was qualified treachery. It has been clearly established that Clarito Fabria was being held firmly by appellant Cabiles thereby preventing the former from moving or making any defense when Labis struck him from behind with a bolo. There was hardly, if any, risk at all for Labis; the decedent was defenseless. 16 Appellant Labis is liable for murder. This brings Us to the liability of appellant Cabiles. Unlike Labis, Cabiles did not advance self-defense. His stand was non- participation in the killing. However, the entire defense version of the incident was discredited by the lower court. Even with particular reference to appellant Cabiles, We are satisfied that the trial court did not err. First, it is clear from the evidence on record that Cabiles alignment and sentiments were with Labis. They were together at the "pahina." They went together to the marriage celebration and then went home in company. Secondly, it strikes Us as strange behavior for appellant Cabiles to act courageously and bravely when danger is near and real, and then to lose such courage when danger has become less imminent and remote. According to the defense version, Cabiles was standing between Labis and the decedent, who had a drawn bolo, trying to prevent the fight. And yet, after the decedent had allegedly thrown his bolo at Labis and had, to all appearances, become unarmed, Cabiles withdrew about four meters away on the conjecture that the decedent might still be possibly armed with a dagger. A man sincerely desirous of putting an end to such incident would have immediately taken advantage of the decedent's momentary armlessness by holding him. Cabiles himself admitted his being a cousin of the decedent. 17 And besides, there were two of them he and Francisco Labis who could have subdued the decedent whom they pictured as the one itching for a fight. Lastly, it appears odd why appellant Cabiles never vigorously insisted on his innocence from the very start. It does not appear that he ever strongly protested being placed under police custody together with appellant Labis who openly admitted having stabbed the decedent and being brought with Labis to the municipal building for investigation. If he had no participation really, why should he be placed under arrest like Mauricio Labis? Francisco Labis was, allegedly, in exactly the same situation as he was. Yet, Francisco Labis was never placed under police custody. These considerations are incompatible with Cabiles' belated plea of innocence. On the other hand, it has been sufficiently established that appellant Cabiles seized the running decedent in such a manner that the latter could not even move or turn around. This enabled the pursuing Labis, who was armed with a drawn bolo and was barely five meters away from the decedent, to finally overtake him and stab him at the back with hardly any risk at all. Cabiles therefore performed another act holding the decedent without which the crime would not have been accomplished. This makes him a principal by indispensable cooperation. 18 Consequently, appellant Cabiles is also liable for murder. As recommended by the Solicitor General, the mitigating circumstance of voluntary surrender will be appreciated in favor of appellants Labis and Cabiles. Instead of running away, they voluntarily went with the policemen who took them

73 into custody. With no aggravating circumstance to offset voluntary surrender, We must impose the penalty for murder reclusion temporal maximum to death in the minimum period, which is reclusion temporal maximum. Since the resulting penalty is neither death nor life imprisonment, the Indeterminate Sentence Law applies. 19 Appellants are therefore entitled to an indeterminate sentence, the maximum term of which is reclusion temporal maximum the penalty to be imposed in view of the mitigating circumstance of voluntary surrender and the minimum term which is one (1) degree lower from the penalty prescribed by the Code for murder is anywhere from ten (10) years and one (1) day of prision mayor maximum to seventeen (17) years and four (4) months of reclusion temporal medium. WHEREFORE, the judgment appealed from is hereby modified and the appellants Mauricio Labis and Isabelo Cabiles are sentenced to imprisonment for a minimum term of seventeen (17) years and four (4) months of reclusion temporal medium, and not to exceed a maximum term of twenty (20) years of reclusion temporal maximum. In all other respects, the judgment appealed from is affirmed. Costs against appellants. So ordered.

[G.R. No. L-26103. January 17, 1968.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELMER ESTRADA, defendant-appellant. SYLLABUS 1. APPEAL; ORDER OF EXECUTION NOT APPEALABLE; REASON; EXCEPTIONS. The general rule is that an order of execution is not appealable, otherwise, a case would never end. Two exceptions to this rule were announced in Castro vs. Surtida, 87 Phil., 166, namely: where the order of execution varies the tenor of the judgment and when the terms of the judgment are not very clear and there is room for interpretation. The present case does not fall under either exception since the order of execution does not vary the tenor of the judgment, but is in accord therewith; and the terms of the judgment are clear and definite. Hence, the rule of non-appealability applies. 2. OBLIGATIONS AND CONTRACT; OBLIGATION WITH A PERIOD; FORFEITURE OF THE PERIOD. The advance payment of the interest was plainly the main consideration for the creditor's assent to delay payment of the balance of the purchase price (P100,000) up to December 15, 1965, despite previous defaults of the defendant-appellant. The dishonor of the check representing the advance interest resulted in the forfeiture of the period given to pay the principal. Appellee's acceptance of the check had suspended his action to enforce the payment of the balance of the principal; but it was not a true payment until the value of the check was realized. Once the check was dishonored, the appellant automatically became in default. 3. ID.; COMPROMISE AGREEMENT; NOVATION; ACCEPTANCE OF CHECK. The claim that the acceptance of the check in question novated the original compromise is untenable. The check was issued as a means to comply with the provisions of the compromise; hence, there is no incompatibility from which a novation could possibly be inferred. 4. ID.; ID.; PAYMENT BY CHECK; FAILURE TO PROVIDE FUNDS FOR VALUE OF CHECK. The appellant's failure to provide adequate funds

74 to back its check resulted not only in a delay in payment, but in positive injury to the credit of the appellee, who had indorsed the check to a stranger. Appellant had the duty to foresee this eventuality, since the check issued by it was negotiable. That appellee the next day provided the requisite funds could not cure the injury. Whether the appellant's breach was substantial or not is primarily a question addressed to the discretion of the trial court. The court a quo regarded the breach as substantial and its conclusion is neither legally erroneous nor in abuse of discretion. DECISION Convicted of murder for the killing of Alexander Almendras and sentenced to suffer an indeterminate prison term of from twelve years and one day of reclusion temporal as minimum to twenty years of reclusion temporal as maximum, to indemnify the heirs of the offended party in the sum of three thousand pesos (P3,000.00), and to pay one- sixth of the costs, Elmer Estrada, nicknamed Baby, appealed from the decision to the Court of Appeals. Said court, however, found that the trial court had erroneously applied the provision of the Indeterminate Sentence Law in the imposition of the penalty which, in its opinion, should be reclusion perpetua, accordingly certified the case to this Tribunal pursuant to Section 17 of the Judiciary Act of 1948, as amended, Hence, this review. A few meters outside the door of the Insular Cafe at the corner of Juan Luna and Martires Streets, Cebu City, at about 11:00 o'clock on the night of November 27, 1963, a flash of gunfire was seen from the direction of three men standing in front of Alexander Almendras, nicknamed Sonny. Almendras reeled. More sounds of gunshots followed; and Almendras fell to the ground. Informed of the shooting, members of the Cebu City Police Department rushed to the scene and when they arrived at the Insular Cafe some minutes thereafter, they found the fallen body of the victim being carried by a young man named Jorge Cordero, who, upon seeing them spontaneously exclaimed: "Sonny gipusil ni Baby Estrada, gukda ninyo. " 1 Finding that the victim was already dead, the police officers immediately pursued the gunwielders who have fled from the place. One of them who stayed behind ordered Cordero to put down the victim back on the pavement, then entered the Insular Cafe and notified the Homicide Section of their Department by phone. Soon, the policemen who chased the killers returned empty-handed. They decided to proceed to the house of Baby Estrada and keep watch over the place. When members of the Homicide Section of the Police Department came to the scene still later, they found the lifeless body of Sonny Almendras into whose left breast a bullet had plowed 21 centimeters deep, still sprawled on the ground, lying on its belly. They took the body thereafter to the Cosmopolitan Funeral Parlor at Junquera Street where it was autopsied by Dr. Venerando Pilapil, Medical Officer of the Cebu City Health Department at about 12:45 o'clock that same evening. His post-mortem findings described the wound that snuffed out the life of Alexander Almendras as follows: "Chest: 1. Wound, gunshot, entrance, oval in shape, diameter, widest 0.7 cm. shortest 0.6 cm., with contusion collar more on the left side of the wound, located 3.5 cm. to the left of the anterior median line at the level of the 2nd left rib, 5 cm. below the left clavicle, penetrating the skin, subcutaneous tissue, muscles of the chest, 2nd left rib near its sternal attachment, perforating the ascending aorta, penetrating upper lobe of the right lung, 3rd right intercostal muscles posteriorly, muscles of the chest, right scapula up to the muscles posteriorly to the right scapula where one slug was recovered marked VP at the tip and AA at the bottom, directed posteriorly, medially to the right side. . . ."

75

For the death of Alexander Almendras, Elmer Estrada alias Baby and Alberto Tejero were later apprehended, and, together with a certain Yuli, John Doe, Richard Doe, and Thomas Doe who have remained at large, were charged before the Court of First Instance of Cebu with the crime of murder, committed with conspiracy and the qualifying circumstance of evident premeditation, and attended by the aggravating circumstances of night time, grave abuse of superior strength and treachery. Both Elmer Estrada and Alberto Tejero pleaded not guilty to the charge. They interposed a defense of alibi. In the course of the trial, after the prosecution had rested its case, the defense moved for the dismissal of the case on the ground of insufficiency of evidence. The trial court, after listening to the argument of the defense counsel and the private prosecutor, denied the motion and ordered the defense to present its evidence. After the trial, the court promulgated its decision on February 17, 1964. It acquitted Alberto Tejero on reasonable doubt, and found Elmer Estrada guilty of the offense charged. After serving notice of his intention to appeal from the decision to the Court of Appeals, Baby Estrada filed a petition with the trial court praying that an order issue setting the amount of bail for his provisional liberty pending appeal which the court granted on February 25, 1964. He was ordered released on February 29, 1964, after posting an appeal bond of P20,000.00. But a few days thereafter, Elmer (Baby) Estrada was rearrested by members of the Cebu City Police Department when he was found illegally possessing a 45-Cal. pistol with magazine and six rounds of ammunition tucked to his waist, and upon complaint filed by the Assistant City Fiscal of Cebu, the trial court ordered Elmer Estrada reincarcerated. His appeal bond was cancelled by the lower court on March 3, 1964. Elmer Estrada then prosecuted his appeal to the Court of Appeals. For failure of the Solicitor General to submit the People's brief after several extensions granted by the court, the case was ordered submitted for decision solely on appellant's brief. A subsequent motion for bail filed by the appellant on February 28, 1966, was denied by the said court on April 22, 1966. And, as aforestated, the Court of Appeals upon review of the records of the case, was of the opinion that the penalty imposable is reclusion perpetua and resolved to certify the case to this Court. A reexamination of the evidence revealed the contrast between the theory of the prosecution and that of the appellant. This is the theory of the prosecution as testified to by the witnesses for the State: Months from November 27, 1963, bad blood already existed between appellant Elmer Estrada, nicknamed Baby, and the deceased Alexander Almendras, nicknamed Sonny. Thus, on June 8, 1963, at about 3:00 o'clock a.m., Sonny Almendras chased Baby Estrada and stabbed him in the back and stomach at the Elite Restaurant, Cebu City. The wound was serious and could have produced death were it not for the timely medical treatment. It required an emergency operation and Estrada had to be confined at the Cebu City Hospital for more than a month. Sometime in September of the same year, the same part of his body has to be operated on again because his abdomen was still weak. He was finally released from the hospital in the latter part of October. But for all these sufferings, Baby Estrada did not file any complaint against Sonny Almendras. He showed

76 clear indications that he would want to even up the score with Sonny Almendras. He gave warning to a former friend, Mike Arriba, to stop going with Almendras or he will meet an accident. On another occasion late in October 1963, Baby Estrada and his companions threatened Sonny with death near the Center Theatre, Cebu City. Almendras ran and sought protection from Patrolman Gingoyon. When Baby Estrada and his friends saw Almendras coming with the policeman, they boarded a taxi. Before they left, Alberto Tejero who was with Estrada at the time, said to Almendras: "You are about to die; you are lucky this evening because Presio, is with you." At about 10:00 o'clock on the night of November 27, 1963, Alexander Almendras and his friends, Carding Manceo, Luis Topacio, Fred Sugatan and Maximino Perez arrived at the Insular Cafe. There, they met Jorge Cordero with two companions, Jesse Navarro and a certain Doy. At the invitation of Almendras, the two groups joined and occupied one table. They start drinking liquor. At about 11:00 o'clock, Jorge Cordero received information from Virgilio Malig-on, a security guard at the Insular Cafe, that the enemies of Sonny Almendras had just passed by in a taxi. Cordero relaxed the warning to Almendras who was then in the comfort room, but Sonny dismissed the warning, saying that "anyway they will not come inside the cafe." Cordero returned to the table. He gave the same information to Luis Topacio who, upon receipt of the news started looking for Almendras. Just then people standing near the door of the Insular Cafe were running inside. Somebody shouted that Baby was there and Sonny should watch out. Luis Topacio who was looking for Almendras to warn him went outside the door and there he saw Sonny standing before Alberto Tejero, Elmer (Baby) Estrada and a certain Fred. He heard Sonny Almendras remarked: "Let's talk this over, Bert." Gunfire was the immediate answer from the direction of the three men. Jorge Cordero who followed Almendras was at the door of the car at that precise moment. He also saw the flash and heard the sound of the gunshot from the persons in front of Almendras, one of whom he recognized to be Baby Estrada. There were two other men standing a little farther away. More shots followed from the same direction. Almendras reeled, then fell to the ground face downward. Luis Topacio hid behind the wall, while Jorge Cordero turned back inside the cafe and sought shelter behind the door. The assailants then fled in a taxi together. When Cordero came out of the door after the gunwielders were gone, he saw the body of Alexander Almendras on the ground. He came to his rescue, and Sonny told him he was hit. He tried to carry the body of Almendras with the aid of other people, with the intention of taking him to a hospital, but before he could do so, members of the Cebu City Police Department arrived at the scene. He hide them to pursue Baby Estrada who shot Almendras and fled in a taxi, whereupon, the policemen immediately gave chase. A policeman who stayed behind examined the body of Sonny Almendras, and seeing him dead, notified the Homicide Section of the Department. They came later with a medical officer who took the lifeless body of Almendras to the Cosmopolitan Funeral Parlor and conducted its autopsy. Meanwhile, the police officers who pursued the killers soon returned without bagging the object of their manhunt. Led by Detective Ricardo Ybaez, they proceeded to the house of Baby Estrada at Junquera Street, just opposite the Cosmopolitan Funeral Parlor where the body of Alexander Almendras had been taken. Detective Ortiz went up the Estrada home to see if Baby was there. He was met by Emma, Estrada's sister, at the door of the house who told him that Baby Estrada was not there, although she knew that she had just met him coming up the house just a few minutes before. Earlier that evening, Cresencio Laput was driving his taxi near the waterfront of Cebu City. A passenger hailed him, and four persons boarded his taxi. One of them ordered him to follow a Snow White taxi ahead of them. The Snow White taxi stopped near the Esso gasoline station at the corner of Juan Luna and Martires

77 Streets, while the other taxi carrying the four passengers proceeded a little farther, beyond the Insular Cafe on the other side of the same street and stopped. Three of the four passengers got out of the taxi, while the fourth stayed and remained seated beside the driver. In about five minutes, the driver heard two shots from the direction of the Insular Cafe, and when he looked back towards the place, he saw a taxi drove away from the scene. He started his car to leave the place, but the fellow sitting beside him, held his steering wheel and told him to wait for his companions. Soon the three passengers returned with two others; they boarded the taxi and ordered the driver to proceed. At the corner of Sikatuna and Bonifacio Streets, five of the passengers disembarked. The sixth remained inside the taxi and ordered the driver to proceed to Sanciangco Street, where the taxi bumped the car of a certain Mr. Bonpua as the taxi was going at a high speed from the time it left the Insular Cafe. At this moment, the last passenger got out of the taxi and hurriedly walked away without paying. For the defense of herein appellant, the following evidence was presented to establish alibi: As a result of the stab wound Sonny Almendras inflicted on Baby Estrada on June 8, 1963, the later was operated on and confined in the Cebu City Hospital for more than a month. The operation had to be repeated in September and he was confined again until his final release therefrom on October 21, 1963. But even during his confinement, hospital personnel received phone calls urging them to release Baby Estrada immediately so that Sonny Almendras could finish him. Because of such threats, Baby Estrada had since then feared Sonny Almendras. Thus, after his discharge from the hospital on October 21, 1963, Baby stayed in his house and avoided night clubs for fear that he might meet Almendras and be killed by him. But on November 26, 1963, a friend of his, informed him that Sonny was in Manila. He was happy because he could go out and enjoy himself. So, on the night of the killing of Almendras on November 27, 1963, he went out. He tried to borrow money from a friend upon the security of his Corsican jacket but failed. He tried another place where he met a friend name Claudio. The latter informed Baby that a certain Cesar was coming with a bottle of wine. Cesar did come a little while after with the wine, and Baby Estrada and he proceeded to Emmanuel's Store across the street. Claudio stayed behind and refused to join them. At the place, Cipriano Gabica saw them and the three of them partook of the wine. Later, they transferred to Amado's place nearby where a natural brother of Estrada also joined in their drinking. The group dispersed before 10:00 o'clock. Baby Estrada invited his natural brother to join him to the Insular Cafe after that, but the latter did not go with him. So, Baby Estrada had to go alone. He rode a rig and stopped at the corner of Juan Luna and Lapulapu Streets, about 30 meters from the Insular Cafe. He walked towards the place. Just as he was about to reach the Insular Cafe across the street, he saw Sonny Almendras with Bill Malig-on at the door of said night club. He was scared and immediately turned back. He walked some distance along Lapulapu Street before he boarded a taxi which took him back to the place where he and his friends drank liquor earlier. His friends were no longer there at the time, so he went straight home. At the stairs of the house, he met his sister, Emma whom he greeted. Baby went up the house and slept, while Emma went down to buy some typewriting paper. That was about 10:30 o'clock in the evening. About 10:35 or 10:40, while Emma was still downstairs talking with the store owner, two men with sidearms came along. They spoke to two other young men standing near the store they were looking for Baby Estrada. The armed men then continued their way. One of the young men near the store to whom they spoke commented before they left: "Just slow, Bay, we might be hit." Hearing that the armed men were looking for her brother, Emma went upstairs and closed the door. She looked inside the room and saw her brother in bed. She looked out of the window and watched. Around 10 minutes

78 later, or at about 11:00 o'clock in the evening, a jeep parked beside their house and several men jumped out of it. They surrounded their house. One of them came up the house. She met him at the door. The man was looking for her brother. Fearing that he may harm Baby Estrada, she lied, and told the man that Baby was not there. The man left after that. About midnight, she noticed that people were in a sort of commotion in the road gathered at the Cosmopolitan Funeral Parlor across their house. She knew something was wrong for it was usual that people flock at the Cosmopolitan Parlor when incidents happen. She did not sleep that evening. She watched the men who were around their house. She recognized one of them to be Carding Ybaez, a detective. At about 3:00 a.m., the men around their house left. In the morning, Emma went down to buy bread. She heard people talking that Alexander Almendras was shot the night before and was taken to the Cosmopolitan Funeral Parlor. She learned from these people also that it was her brother who shot Sonny Almendras. So, upon her return to the house, she informed her mother who was in the kitchen, about the news she heard, and together they entered the room of her brother, Baby Estrada, and woke him up. They asked Baby if it was true that he was the one who shot Sonny Almendras at the Insular Cafe the night before, and Baby gave indication of being surprised. He admitted having been to the Insular Cafe earlier that evening, but went straight home when he saw Sonny Almendras outside the door of the cafe because he was afraid of him. As a matter of fact, he was seen by his sister, Emma, at the stairs of the house at about past 10:00 o'clock that evening when he came home. The assurance given by Baby Estrada that he had nothing to do with the killing of Almendras the night before, notwithstanding, the family worried because it had been broadcasted over the radio and it was already the talk of the town that Baby Estrada shot Sonny, so they decided to seek protection for Baby from the Philippine Constabulary. Baby's mother went to Opon, Cebu and sought the help of Estrada's uncle, and when they returned to the house, they (mother and uncle of Baby) were already accompanied by two PC soldiers. Baby Estrada was later taken to the PC headquarters. There, Baby Estrada requested for a paraffin test. The PC called the offices of the NBI and the CIS but said agencies answered that their technicians were not present, so the PC told him that it was not necessary. Soon Estrada was fetched by a police officer from the PC headquarters. His lawyer accompanied him there too. Once again, he requested for a paraffin test, and again he was told that their technicians were not around. Regarding the incident at the Elite Restaurant on June 8, 1963, where Sonny Almendras stabbed Baby Estrada in the back and in the stomach, and for which Estrada was operated on and confined in the hospital for more than a month, it was explained that Estrada tried and wanted to file a criminal complaint against Sonny Almendras but had no witnesses. One of the eyewitnesses who saw the attack on Estrada was also later on shot by Almendras and hospitalized. The police also informed him that no waitress of the Elite Restaurant was willing to testify against Almendras, hence, the non-filing of any complaint against Almendras. From the foregoing conflicting theories, the trial court deduced that Baby Estrada and his companions conspired to kill Alexander Almendras; that they resolved to kill Almendras on a vendetta to vindicate the wrong committed on Estrada by Almendras when the latter stabbed the former at the Elite Restaurant on June 8, 1963; and that the attending circumstances of the case convincingly show evident premeditation on the part of the conspirators. It, therefore, convicted herein appellant, Baby Estrada, of the crime of murder for the killing of Almendras. Appellant first assails the finding of the lower court that conspiracy existed

79 between him and his co-accused in the killing of Alexander Almendras. In support of his stand, he argues as follows: "It was fully established that a certain Fred was the one who fired the fatal shot (Decision, p. 20; Tsn-La Paz, p. 51) that felled Almendras. That, standing alone, makes Fred liable for his acts, for. 'In the absence of a previous plan or agreement to commit a crime, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and each of the participants is liable only for the acts committed by himself.' [U.S. vs. Magcomot, 13 Phil. 386.] For the killing, only Fred and Fred alone is solely responsible," We are more inclined to reject this theory. The evidence, it is true, shows that the first flash of gunfire was seen in front of Sonny Almendras, and the persons standing in front of him at the time were Alberto Tejero, Baby Estrada, and a certain Fred, 2 but the evidence is not clear as to who among them fired the fatal shot. 3 According to the eyewitnesses, Fred was standing in front of Sonny Almendras at a point situated in an oblique direction from Sonny's right while Alberto Tejero stood in an oblique direction from Sonny's left with Baby Estrada standing behind Alberto Tejero. 4 Sonny was heard addressing Alberto Tejero: "Let us talk this over, Bert." 5 Immediately after the remark, Fred fired "Bang Bang," 6 and Sonny Almendras reeled and fell to the ground after the shot. 7 These facts do not justify an inference, however, that the bullet that killed Almendras came from the direction of Fred, for according to the postmortem findings of the medical officer who autopsied the body of Almendras, the entrance of the wound in the chest of the victim was about 3.5 cm. left of the center of the body at the level of the 2nd left rib, penetrating the anterior muscles of the chest and the 2nd left rib, perforating the ascending aorta of the heart, penetrating the right lung and the posterior muscles of the chest to the right scapula where the slug was recovered directed posteriorly to the right side, 8 tending to show that the bullet came from an oblique direction towards Sonny's left. We do not lose sight of the fact, also established, that the first shot came soon after the address of Almendras "Let us talk this over, Bert" to Alberto Tejero, 9 who was standing in front of Almendras in an oblique direction from the left of the latter. 10 The logical conclusion under the circumstances would therefore be this: either the first shot came from the direction of Alberto Tejero or Baby Estrada who was behind him if that first shot was really the one that felled Almendras, or it was one of the other shots that followed the first shot; 11 coming from the same direction where Bert Tejero and Baby Estrada stood, which fatally hit Almendras. The position of the three men in relation to that of Almendras, and the point of entrance of the wound, detracts from appellant's theory that it was Fred who fired the fatal shot. At any rate, assuming that it was really Fred who fired the shot that killed Sonny Almendras, and herein appellant did not fire any of the other succeeding shots, still he is liable as a co- conspirator to the killing of Sonny Almendras as will be shown hereafter. Appellant would insist that the trial court fell into error when it held that all the accused had acted "with concert and in unison in obedience to a plan or prior agreement, " 12 and hence, "Estrada is liable for the killing of Almendras to the same extent as Fred, " 13 in spite of its finding that "no witness was presented to establish any previous agreement between them to commit murder." 14 We are not impressed with this argument either. There is competent evidence to the effect that at about 10:00 o'clock on the night of November 27, 1963, four (4) persons boarded a taxi near the pier area of Cebu City and directed the driver to follow a Snow White taxi ahead of them to the corner of Juan Luna and Martires Streets. There the Snow White taxi stopped near the Esso Gasoline Station along Juan Luna Street, while the other stopped

80 near the Insular Cafe on the other side of the same street. 15 Three of the four passengers of the taxi near the Insular Cafe disembarked, while the fourth stayed inside the car. At about the same time, inside the Insular Cafe where Sonny Almendras and his friends were drinking liquor, one of them named Jorge Cordero, received warning from a security guard that the enemies of Almendras just passed by in a taxi, 16 which warning he relayed to Sonny Almendras and to another companion, Luis Topacio. 17 And no sooner had the presence of the feuding protagonists Almendras and his friends on the one hand against Baby Estrada and his group on the other manifested itself in the excitement of the people standing near the door of the Insular Cafe at the time. Knowing that bad blood existed between them, people at the door of the cafe became apprehensive of the tenseness of the situation and went inside running, shouting that Baby was there and Sonny should watch out. 18 Two among the friends of Almendras inside the cafe went outside the door and saw Almendras standing at the time in front of three men near him, one of whom they recognized to be Baby Estrada. 19 Two other men were seen standing a little farther away aside from the three in front of Sonny Almendras. 20 Almendras addressed one of the men in front of him: "Let us talk this over, Bert. " 21 Immediately, gunfire flashed in front of Sonny Almendras who, thereafter reeled. 22 The driver of the waiting taxi from which the three men previously disembarked, heard the gunshots from the Insular Cafe. 23 and when he looked at the place, he saw the other taxi scampered away from the place. He started his car to leave the place also, but the fourth passenger who remained inside the taxi beside him, held the steering wheel of the car and told him to wait for his companions, 24 who arrived later with two other men with them. They boarded the taxi and told the driver to go fast, directing him to turn left, then right until they reached the corner of Sikatuna and Bonifacio Streets where five of the passengers disembarked, the sixth ordering the driver to take him to Sanciangco Street. 25 Before they reached the place, however, the taxi bumped the car of another, 26 during which distraction, the last passenger hurriedly slipped away without paying the taxi fare. 27 Back at the Insular Cafe, the police soon arrived at the scene of the shooting. They found the body of Sonny Almendras being carried by Jorge Cordero who, upon seeing them spontaneously exclaimed that Baby Estrada has shot Sonny Almendras and urged them to pursue him. 28 These circumstances, woven together, convincingly show that herein appellant and his companions had conspired together to attain a common purpose to kill Sonny Almendras. While admittedly, the driver of the get-away taxi failed to identify herein appellant to be one of his passengers who disembarked near the Insular Cafe at the time of the shooting, nor did he see them going to the said nightclub, from the fact that herein appellant was positively identified to be one of the man standing in front of Sonny Almendras when the latter was fired upon, coupled with the circumstance that people standing near the door of the cafe became frantic when they saw Estrada and his companions there, and the further circumstance that Sonny Almendras appears to have gone out of the door of the cafe to see or meet them upon the information of the security guard who relayed the news that his enemies were seen in the taxi that passed by shortly before the shooting, it follows that he was one of the men who alighted from the taxi that stopped near the Insular Cafe telling the driver to wait and then, barely five minutes thereafter boarded back the waiting taxi with two other men immediately after the shooting and hurriedly fled from the scene. This conclusion sustains the holding of the trial court that herein appellant and his companions that evening, had acted with concert and in unison in obedience to a plan or prior agreement-to kill Sonny Almendras. Their agreement or conspiracy is manifested in their acts. To establish conspiracy, it is not necessary to prove previous agreement to commit a crime if there is proof that the malefactors have acted in consort and in pursuance of the same objective. 29 This Court has repeatedly decided that conspiracy may be inferred from the acts of the accused themselves when such acts point to a joint purpose and design. 30 Their action must be

81 judged by what they do and not altogether by what they say; for what men do is the best index of their intention. 31 Thus, this Court has ruled in a similar situation: 32 "Although there is no direct proof of conspiracy between the appellants, the simultaneous presence of both at the scene of the crime, the shot fired by appellant Timoteo Cruz, immediately after Valencia had been shot by Felipe de la Cruz, and the circumstance that, forthwith thereafter the latter boarded the former's car, which was there ready for the get away, leave no room for doubt as to the existence of unity of action and purpose between them." Further, appellant argues that he was not present at the Insular Cafe at the precise time the shooting of Almendras occurred, pointing out that even the alleged eyewitnesses to the shooting were not agreed as to his position in relation to Almendras when they saw him. 33 He vehemently maintains that he could not have been there because at the time of the shooting, he was already at home fast asleep, having left the Insular Cafe earlier in the evening upon seeing Almendras there for he was afraid of him. The suggestion should be rejected. It is true, as pointed out by herein appellant, that in the course of his testimony witness Jorge Cordero had said that he saw him (Baby Estrada) in front of Almendras at the time of the shooting, 34 while witness Luis Topacio said at one instance in his testimony that Estrada was behind Almendras, 35 but such inconsistency may be overlooked, Both witnesses were required during the course of the trial, to reenact the position of the assailants and the deceased and to indicate in separate sketches their relative positions as they saw them, and both illustrations show that herein appellant was in front of Almendras. 36 This is in addition to their other statements that they saw Baby Estrada standing in front of Sonny when the latter was shot. 37 The alleged inconsistency, therefore, cannot justify an inference that herein appellant was not at the scene of the crime at the time. And so with the alibi he proffers. No jurisprudence in criminal cases is more settled than the rule that alibi is the weakest of all defenses and that the same should be rejected when the identity of the accused has been sufficiently and positively established by eyewitnesses to the crime. 38 Such should be the rule, for as a defense, alibi is easy to concoct, and difficult to disprove. 39 And for alibi to prosper, it is not enough to prove that defendant was somewhere else when the crime was committed, but he must, likewise, demonstrate that it was physically impossible for him to have been at the scene of the crime at the time. 40 Herein appellant's alibi does not meet this standard. In the first place, appellant admits having been to the Insular Cafe on the night of the shooting, although he claims to have left at about 10:00 o'clock upon seeing that Almendras was there, 41 because he was afraid of him. 42 Secondly, appellant's sister, Emma, declared that she met him (appellant Estrada) coming up the stairs of their house at about 10:30 or past that night while she was going down the house to buy writing paper. 43 Shortly thereafter, while she was still downstairs at the store, two men carrying firearms passed by looking for Baby Estrada. 44 She then went up the house and closed the door. It was about 10:35 or 10:40 at the time. 45 She watched outside from the window and according to her, "about 10 or 5 minutes later" a jeep parked near their house; men jumped out of it and encircled their residence. One of them with a firearm came running up their house; she met him at the door; and when the armed men inquired for her brother (Baby), she lied and told him that Baby Estrada was not there. 46 Around midnight, she noticed people flocking at the Cosmopolitan Funeral Parlor just across their house. She stayed awake that whole evening, and noticed that at around 3:00 a.m. the jeep near their house left, although some men continued watching their house. 47 In the morning, she went down the house to buy bread and she heard people talking that the body of Sonny Almendras, shot the night before by her brother, was brought to the Cosmopolitan Funeral Parlor. 48 That was the time she informed her mother about the news, and

82 together they entered Baby Estrada's room and questioned him about the incident, which herein appellant denied having anything to do with the killing of Almendras. But the trial court did not believe the story, and upon the other evidence on record, concluded that Baby Estrada (appellant) and his gang went to the Insular Cafe that evening on a vendetta. 49 And We find no compelling reason to disturb this finding of the lower court. The defense of alibi is an issue of fact that hinges on credibility; the credibility of an alibi depends so much on the credibility of the witnesses who seek to establish it; and in this respect, the relative weight which the trial judge assigns to the testimony of said witnesses must, unless patently and clearly inconsistent with the evidence on record, be accepted. For, as is well recognized, his proximate contact with those who take to the witness chair places him, compared to appellate Justices, in the more competent position to discriminate between the true and the false. 50 Moreover, from the foregoing narration of events by appellant's sister, We note that barely some 5 or 10 minutes after Baby Estrada came up their house, two armed men were already following this trail; and soon after the lapse of another 5, 10 or 15 minutes, a jeep-load of men were already seen surrounding their residence, one of whom came running up the house and inquired from her if herein appellant was there. Such proximity in time between appellant's alleged arrival in the house and the immediate coming of the police officers pursuing him, belies the claim of herein appellant that he had left the Insular Cafe earlier that evening and could not have been there at the time of the shooting. Finally, the Court cannot simply accept without mental reservation the veracity of herein appellant's sister that she and her mother questioned Baby Estrada if he had anything to do with the shooting of Almendras, only the following morning after she heard the news from other people and over the radio that her brother was the principal suspect in the shooting of Almendras the previous night. Under the tenseness of the situation having seen and heard two men carrying firearms inquiring for her brother barely 5 or 10 minutes after she saw Baby Estrada came up the house; seeing a group of men, among them Detective Ricardo Ybaez, surrounding their house a few minutes thereafter; having met another armed man (Detective Ortiz) who came running up the stairs of the house and inquired if her brother was there; and having taken note thereafter of the commotion at the Cosmopolitan Funeral Parlor across their house which, admittedly, she knew takes place only when incidents happen it is quite unnatural, nay unbelievable, that she stayed up the whole evening watching the movement of the men who had surrounded their house without asking her brother then and there where he really had been before coming home that evening, when the natural thing to do under the circumstances, would either be to have asked those armed men inquiring about the whereabouts of her brother why they were looking for him, why Detective Ricardo Ybaez (their neighbor) and his men were surrounding their house, or to have informed her mother and ask Baby Estrada about the situation. It is highly probable under the circumstances that Baby Estrada had confessed or told her sister, Emma, of his involvement in the shooting of Almendras before the coming of the police to their house, and in her desire to conceal or protect herein appellant, denied his presence in the house when Detective Ortiz went up the house that evening and inquired if Baby Estrada was there. Appellant next assails the holding of the lower court that the statement of Jorge Cordero to the police immediately after the shooting of Sonny Almendras, 51 was admissible as part of the res gestae. Apparently, the trial court failed to consider that the principle of res gestae, being an exception to the hearsay rule, is not applicable when, as in this case, the person speaking about a startling event or occurrence testifies in court, for then the truth of his assertions may be tested through cross-examination. At any rate, this holding of the court is a harmless error, since the witness reiterated in his testimony before the court the event that he had witnessed. What the trial court correctly considered as part of the res

83 gestae was the warning given by the people present near the door of the Insular Cafe at the time who, in their excitement, shouted "that Baby was there, and Sonny should watch out." And although herein appellant would insist that what was heard was only the word "Baby" and not "Baby Estrada," the conclusion of herein appellant that it could have been another "Baby" referred to and not he, fades into insignificance in the light of the testimony of eyewitnesses that he (Baby Estrada) was seen standing in front of Sonny Almendras when the shooting occurred. In connection with the third assignment of error, appellant laments the holding of the lower court that he had a powerful motive to commit the crime. He contends that motive on his part should not be considered for the reason that the evidence for the prosecution points to a certain Fred as the person who mortally shot Almendras. The claim is without merit. It is true that motive is not necessary where there is no doubt that the defendant was the one who caused the death of the accused. 52 But as earlier explained, We are net even convinced that it was Fred who fired the shot that killed Almendras for the reason that the medical findings tend to show that the bullet that entered the body of the deceased, came from an oblique direction towards the left chest of the victim, contrary to the evidence that Fred stood and fired from an oblique direction towards the right of Almendras. Appellant herein was convicted on a finding of conspiracy without defining any act of his that directly contributed to the ultimate act that killed the deceased. Motive, is here material, for it gives the reason why he participated in the conspiracy. Likewise, the right of the prosecution to call at the trial witnesses other than those listed in the complaint or information may not be seriously questioned. This right is supported by the rules and jurisprudence on the matter. 53 While the accused in a criminal prosecution is entitled to know the nature and cause of the accusation against him, 54 yet it does not mean that he is entitled to know in advance the names of all the witnesses for the prosecution. The success of the prosecution might be endangered if such right be granted to an accused, for the known witnesses might be subjected to pressure or coerced not to testify. The time for the accused to know all the witnesses against him is when they take the witness stand. 55 And from the fact that the witnesses here objected to are members of the police department of Cebu City, it does not necessarily follow that the danger to the success of the prosecution above-contemplated is totally obliterated. Finally, appellant contends that the trial court erred in believing witness for the prosecution. Jorge Cordero, and in not believing appellant and his witness. He would capitalize on the statement made by Cordero to the police immediately after the shooting urging them to arrest him as an act of vengeance against him because Cordero was a long time friend of Almendras and an enemy of his. He concludes that as the facts proven tend to show that it was not herein appellant who shot Almendras, Cordero's testimony is suspicious and is not worthy of belief. The contention is not well taken. Cordero appears to have made the statement to the police immediately after the shooting, the dying victim in his arms. He urged the police to chase herein appellant spontaneously, without time to reflect. And the fact is, he saw Baby Estrada with two other men in front of Almendras when the shooting occurred, and because he did not recognize the two other men, he told the police to pursue herein appellant. His statement grew out of his nervous excitement, and may not fully be in accord with the facts subsequently proved, but We cannot subscribe to the suggestion of herein appellant that Cordero, under such a startling occurrence, could have been influenced by any evil motive against herein appellant. Moreover, the rule is well settled that where the issue in a case is the credibility of witnesses, appellate courts do not generally disturb the findings of the trial court, the judge thereof

84 being in a much better position to decide the question, having seen and heard the witnesses himself and observed their deportment and manner of testifying, unless it is shown that it has overlooked certain facts of substance and value that, if considered, might affect the result of the case. 56 This case does not fall under the exception. By and large, therefore, We find the conclusion of the lower court legally sound that herein appellant is liable for the killing of Alexander Almendras on the night of November 27, 1963. We also find no justifiable reason to disturb the holding of the court that the aggravating circumstance of night time cannot be considered for there is authority to the effect that for nocturnity to be aggravating, it must appear that it has been purposely sought by the offender to facilitate the commission of the crime. 57 Nor did the court err in not appreciating the aggravating circumstance of treachery for as correctly observed by the trial judge: "It would appear that the shooting was preceded by a verbal altercation, as shown by the remark of Sonny Almendras to them, 'Let us talk this matter over, Bert.' When he uttered said words, he was facing Fred, Estrada and others. Besides, he was observed to insert his hand in his pocket a gesture which might have been considered as an act of hostility considering his previous homicidal proclivities and his being 'trigger happy.'" And so with the aggravating circumstance of taking advantage of superior strength which was not appreciated for, mere superiority in number of assailants does not prove it. 58 Lastly, the trial court was correct in appreciating the presence of evident premeditation in the killing. Soon after the appellant had nursed for more than a month the stab wound which Sonny Almendras inflicted upon him, said appellant showed clear indications that he would even up the score with Sonny. He forewarned a friend to stop going with Almendras or he might meet an accident. 59 His resolution to carry a vendetta was known to his friends who fraternized with his cause, in as much the same way that Almendras knew and felt that the day of reckoning was coming soon. Thus, when by chance they met one evening, Almendras frantically ran away and sought protection from a policeman, on which occasion, one of herein appellant's companions gave stern warning to Sonny even in the presence of the peace officer that his death was near. 60 Appellant and his friends who conspired with him, had more than sufficient time to reflect upon the consequence of their resolve, but they did not inhibit themselves. Their determination to kill is indicated by their simultaneous arrival at the scene of the crime on the night of the killing, their immediate attack upon the victim, and their departure together in the same getaway car that was made to wait for them after carrying out their evil plan. 61 Such evident premeditation qualifies the killing to murder. Murder is punishable by reclusion temporal in its maximum period to death. When, as in this case, no mitigating or aggravating circumstances attended the commission of the crime, the penalty should be imposed in its medium period which is reclusion perpetua. 62 Obviously, therefore, the trial court fell into error in sentencing herein appellant to an indeterminate prison term by applying the provisions of the Indeterminate Sentence Law which is not applicable when the person convicted of an offense is punished with death penalty or life imprisonment. 63 Consequently, the said prison sentence should be modified accordingly. WHEREFORE, decision in this case as to the penalty is modified, setting aside the sentence from twelve years and one day of reclusion temporal as minimum, to twenty years of reclusion temporal as maximum, and in its stead, the accused (appellant) is hereby sentenced to reclusion perpetua and to indemnify the heirs of

85 Alexander Almendras, the sum of P6,000.00. As thus modified, the judgment is affirmed in all other respects.

[G.R. No. L-24804. July 5, 1968.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARCIANO PARAYNO @ Cianong, and JOSE PARAYNO, defendants-appellants. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; WEIGHT AND CREDIBILITY; TESTIMONY OF WITNESSES; POSITIVE TESTIMONY STRONG. The mere fact that the blow did not produce any fracture in the head of the victim does not conclusively show that the testimony of the witness was improbable, for the resulting injury would surely depend upon the force applied. In the light of positive testimony that the accused struck at the victim, and in the absence of any evidence showing the degree of force applied, nothing much should be made out of the circumstance that the attack did not result in any fracture. The mere possibilities that the head of the victim might have bumped against a blunt object when he fell, cannot stand the positive testimony of the children that they saw the accused Marciano Parayno strike at the boy with a piece of wood. 2. ID.; ID.; AFFIDAVITS IN INSTANT CASE ARE ADMISSIBLE IN EVIDENCE. Where it appears that before this case was forwarded to the trial court for further proceedings, affidavits were executed by the prosecution witnesses and a preliminary investigation was conducted by the Justice of the Peace and these affidavits were offered as exhibits for the defense which are now legally before the Court, they are admissible in evidence and may properly be considered for the purpose of testing the credibility of said witnesses. 3. CRIMINAL LAW; HOMICIDE: EVIDENT PREMEDITATION CANNOT QUALIFY KILLING IN INSTANT CASE. The crime committed appears to be homicide, not murder. The aggravating circumstance of evident premeditation cannot qualify the killing in this case to murder. The intent to kill seems to be not even apparent, considering the evidence that he merely threatened the children on top of the "payar" tree and chased them when they got down. Marciano Parayno did beat one of the children, but the evidence is not conclusive, whether or not that injury was or could have been fatal to the life of the boy, the indubitable evidence being that the victim died of drowning. In view of this observation and considering the conclusion that the evidence of the prosecution tending to show that the accused intentionally rolled the body of the victim into the river is not free from doubt, the qualifying circumstance of evident premeditation should be ruled out. 4. ID.; ID.; ABUSE OF SUPERIOR STRENGTH IN INSTANT CASE. Marciano Parayno may not be said to have taken advantage of superior strength in the commission of the offense, notwithstanding the fact that at the time thereof, the said accused was already 61 years of age, while the victim was only 9. 5. ID.; ID.; PROPER PENALTY THEREFOR. Homicide is punished by reclusion temporal. In the absence of any aggravating circumstance, the penalty imposed by law for the crime committed should be imposed in its medium period. Applying the law on indeterminate sentence, the maximum term of the penalty should be within the range of reclusion temporal medium, while the minimum should be within the range of prision mayor. Considering the peculiar circumstances surrounding the drowning of the victim, and in the exercise of its

86 discretion in fixing the minimum term of the sentence, the Court believes that the accused is entitled to the maximum of the benefits allowed under the said law.

[G.R. No. L-29117. November 25, 1969.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CIPRIANO DIGAMON, defendant-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; ADMISSION; BURDEN OF PROVING THAT ACT WAS ACCIDENTAL UPON ACCUSED. The fatal stabbing of the deceased by the accused being admitted by the latter, the burden lay on the appellant to satisfactorily establish that the manslaughter was purely accidental in the course of a fight with Teodoro Loga. 2. ID.; ID.; ID.; ID.; ACCIDENTAL STABBING NOT ESTABLISHED IN CASE AT BAR. The testimony of the appellant that stabbing was accidental is contradicted by his own witnesses, namely: 1) Teodoro Loga who denied having seen the deceased in spite of the claim that the deceased interposed himself between accused and Loga; 2) Anacleto Cagamcam's assertion that it was 30 minutes after Loga was stabbed that he heard accused shout for help; 3) Policeman Lanipa's declaration that he went to the hospital after hearing the incident to take the ante-mortem statement but he did not proceed because Sgt. Abelo had gotten ahead of him but that the deceased was able to tell him that the stabbing was accidental. This vital fact he didn't divulge to his superior, Sgt. Abelo, which renders such suppression highly suspicious. Apart from these testimonies, there is the apparent implausibility of the deceased interposing himself between two armed contestants, ruling out that the stabbing was accidental. 3. ID., ID.; HEARSAY EVIDENCE OF NO PROBATIVE VALUE. Where appellant's witness testified that after the stabbing, accused went to him and delivered the fatal bolo saying that he accidentally stabbed the deceased, said testimony is hearsay and of no probative value. 4. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE OF TREACHERY PRESENT IN INSTANT CASE. The evidence established the commission of the crime of murder, qualified by treachery, which is shown by the suddenness of the attack upon the victim who did not expect it, as he was watching the canvassing for a muse. 5. ID.; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER CONSIDERED IN INSTANT CASE. The accused should be credited with the mitigating circumstance of voluntary surrender, for the positive testimony of prosecution witness, is that immediately after the stabbing, accused-appellant went to the police station to surrender. 6. ID.; INDETERMINATE SENTENCE LAW; IMPOSITION OF PENALTY LESS THAN LIFE IMPRISONMENT ENTITLES APPELLANT TO THE BENEFITS OF INDETERMINATE SENTENCE LAW. Where the commission of the crime was attended by no aggravating circumstance but with one (1) mitigating circumstance, that of voluntary surrender, the minimum penalty for the felony must be imposed, i.e., reclusion temporal in its maximum period. The penalty, being less than life imprisonment, entitles the appellant to the benefits of the Indeterminate Sentence Law.

87

DECISION Appeal originally taken to the Court of Appeals from a judgment of the Court of First Instance of Misamis Occidental, in its Criminal Case No. 07202 (Hon. Mariano A. Zosa, presiding), convicting the accused-appellant, Cipriano Digamon, for murder and imposing a penalty of reclusion temporal. The Court of Appeals certified the case to this Supreme Court as one wherein the imposable penalty is reclusion perpetua, beyond its appellate jurisdiction. The accused-appellant, Cipriano Digamon, pleaded not guilty to an information for murder "with the qualifying circumstance of treachery and the generic aggravating circumstance of evident premeditation," by stabbing with a bolo "one Pedrito Jumawid suddenly and treacherously and without any warning, inflicting on the latter a stab wound on the left iliac crest with fracture of the iliac bone and another stab wound on the left forearm, the first injury directly and necessarily causing the death of the said Pedrito Jumawid" (Information, Court of Appeals' rollo, page 2). After entering his plea, however, counsel for the accused manifested the willingness of the accused to plead guilty to the lesser offense of homicide, but the prosecution rejected the offer (T. s. n., Jamorol, pages 1-2), whereupon the trial proceeded for the reception of the evidence. It is admitted that the accused-appellant stabbed Pedrito Jumawid with a "flaminco" (a bolo) in a place outside but near the gate of the dance hall in the barrio market premises of Talairon, Oroquieta, Misamis Occidental, while a dance and canvass for a muse were being held in the evening of 15 December l962 and where many people had gathered. The only difference between the theories of the prosecution and that of the defense is that according to the former, the accused, out of resentment for Pedrito Jumawid's refusal to accept accused's offer of a drink of tuba, or native wine, upon seeing Pedrito Jumawid watching the dance, suddenly stabbed him, causing his death two days later; but according to the defense, the accused intended to stab one Teodoro Loga in retaliation for an icepick stab inflicted by the latter upon the accused but the stab intended for Loga accidentally landed on Pedrito Jumawid because the latter suddenly interposed himself between the contenders. Two eye-witnesses for the prosecution described the incident: Alberto Zamora, a policeman, testified that he attended the dance and canvassing and he was about two (2) meters behind Pedrito Jumawid; the accused approached Jumawid and, without prior conversation, stabbed him on the left side of his body; the victim reeled or careened, and witness Zamora placed him aboard a pedicab and sent him to the hospital (T. s. n., Jamorol, pages 4-8). Marianito Taan testified that he was also about two (2) meters behind Jumawid, who was witnessing the canvassing, when Cipriano Digamon arrived, rushed at Jumawid, and stabbed him; Jumawid shouted for help, but, because of fear, witness Laan went away (T. s. n., Napigkit, pages 7-10). Pedrito Jumawid was examined at the hospital and he was found to have sustained: "1. stab wound, one (1) inch wide, three (3) inches deep at the level of the left iliac crest, directed downward with linear fracture of the iliac bone;

88 "2. stab wound, left forearm anterior, with avulsion of the skin." (Exhibit "C")

Sergeant of Police Santiago Abelo, upon hearing about the incident, went to the hospital at past eleven o'clock that evening of 15 December 1962; he saw Jumawid hovering between life and death, trembling as he answered the sergeant's interrogations. Abelo set down in writing his questions and the answers given by Jumawid in an ante-mortem statement that Jumawid later thumbmarked (Exhibit "B"). In said statement, Jumawid identified his assailant as the accused Cipriano Digamon but averred that he had no misunderstanding with him ("Q. Why were you wounded? A. We have no difference"). The victim died in the hospital on 17 December, 1962 ( T.s.n., Napigkit, page 25). The ante-mortem statement admitting the absence of any misunderstanding between the accused and the victim does not eliminate resentment as motive of the accused in killing Jumawid, for the latter's statement evidently refers to a cause immediately preceding the aggression. On this point the Court of Appeals has observed: "As to the prosecution's evidence to establish motive which consists in the testimony of the sister of the deceased to the effect that on a certain occasion, the accused promised to kill the deceased for refusing to drink tuba offered by the accused, we find the same insufficient motive to kill the deceased. This, however, does not improve the stand of the accused, considering that proof of motive is not essential when the accused is positively identified as the person who committed the crime (People v. Raquel, No. L-17401, Nov. 28, 1964). Indeed, the appellant admits having inflicted the wound that caused the death of the deceased." (CA Resol., 8 April 1968) We agree to the preceding observations, except to note that in many cases the motive for taking human life appears insufficient to the normal mind (V. Train, "Why do Men Kill ?" in Wigmore, Science of Judicial Proof, page 184). The fatal stabbing of Pedrito Jumawid by the accused being admitted by the latter, the burden lay on this appellant to satisfactorily establish that the manslaughter was purely accidental in the course of a fight with Teodoro Loga; but his testimony in this respect is contradicted by several of his own witnesses, apart from the apparent implausibility of Jumawid interposing himself between two armed contestants, Teodora Loga with an ice pick and appellant Digamon with the small bolo locally designated as a ''flamenco" or ''plaminco.' It would have been readily apparent to Jumawid that by placing himself between the combatants would inevitably expose him to fatal injury, and elementary prudence would deter him from such interposition. Reinforcing this consideration are the testimonies of defense witnesses Teodoro Loga and Anacleto Cagamcam. Loga testified that on the evening in question he was able to evade a stab by Digamon, and ran away after doing so; but he roundly denied having seen the deceased (T.s.n., Napigkit, page 37). This is hardly credible if the latter had placed himself between Loga and the appellant. Defense witness Anacleto Cagamcam, in turn, asserted in court that it was 30 minutes after Loga was stabbed by Digamon that the witness heard a shout for help from Jumawid (T.s.n., Napigkit, page 46), thus indicating that the appellant's fight with Loga preceded by an appreciable interval the fatal assault on Jumawid. Thus, his own witnesses wrecked appellant's story. Hence, we are forced to reject the theory of accidental stabbing.

89 To reinforce appellant's version, defense witness Lanipa, a policeman, declared that he went to the hospital after hearing about the incident for the purpose of taking an ante-mortem statement of the victim but Sergeant Abelo had gotten ahead of him and, therefore, did not take one anymore, but that, nevertheless, the deceased had told him (witness Lanipa) that the stabbing was accidental. On cross-examination, this witness was evasive in answering the question whether he told Sergeant Abelo what the deceased had told the witness in the hospital but finally admitted that he did not inform Sergeant Abelo of it nor had he read the ante-mortem statement taken by Sergeant Abelo (T.s.n., Napigkit, pages 77-79). The suppression of this vital fact from his superior renders Lanipa's testimony highly suspect. Rodrigo, the vice-barrio lieutenant at the time of the incident, testified that he did not see the actual stabbing; he claims, however, that after the stabbing appellant Digamon delivered the fatal bolo to him, saying that he had accidentally stabbed Jumawid. This witness was evasive, however, when asked if he had informed the authorities about what Digamon had told him, and finally admitted that he did not (T.s.n, Napigkit, pages 83-85). Anyway, what Digamon told witness Rodrigo is hearsay and of no probative value. The evidence therefore establishes the commission of the crime of murder, qualified by treachery, which is shown by the suddenness of the attack upon the victim who did not expect it, as he was watching the canvassing for a muse (U.S. vs. Castellon, 12 Phil. 160; People vs. Macarinfas, 40 Phil. 1; People vs. Vacal, et al., L-20913, 27 February 1969, 27 SCRA 24). But, with the Court of Appeals, this Court finds no evidence of evident premeditation . The accused should be credited with the mitigating circumstance of voluntary surrender, for the positive testimony of prosecution witness, Alberto Zamora, is that immediately after the stabbing accused-appellant Digamon went to the police station to surrender (T.s.n., Jamorol, page 9). As the commission of the crime was attended by no aggravating circumstance but with one (1) mitigating circumstance, that of voluntary surrender, the minimum penalty for the felony must be imposed, i.e., reclusion temporal in its maximum period. This penalty, being less than life imprisonment, entitles the appellant to the benefits of the Indeterminate Sentence Law (People vs. Yturriaga, 86 Phil. 534, and other cases cited in Aquino, The Revised Penal Code, Vol. 1, pages 655656). The trial court found the accused-appellant guilty of murder, qualified by treachery, with the aggravating circumstance of premeditation, and imposed the penalty of twelve (12) years and one (1) day to fourteen (14) years and eight (8) months imprisonment. As already noted, the finding of an aggravating circumstance is error, and even if such finding were correct, the penalty imposed would be erroneous. For, assuming the existence of an aggravating circumstance, then the proper penalty would be death, as the maximum penalty for murder. What the trial court imposed is the minimum period of reclusion temporal, when the minimum penalty for murder is reclusion temporal in its maximum degree (Article 248, Revised Venal Code). Obviously, one error was made on top of another. Compensatory damages for the death of the victim were awarded by the trial court in the amount of P6,000.00. Under the prevailing jurisprudence, this amount should be P 12,000.00 (People vs. Pantoja, 25 SCRA 468, and cases collated in the annotation to People vs. Mabaga, 28 SCRA 788).

90 FOR THE FOREGOING REASONS, the appealed judgment is hereby modified: (1) by sentencing the appellant, Cipriano Digamon, to an indeterminate penalty ranging from twelve (12) years and one (1) day to eighteen (18) years of reclusion temporal; and (2) by ordering said appellant to pay the heirs of Pedro Jumawid the sum of P 12,000.00 as compensatory damages. Costs against appellant.

[G.R. No. L-37633. January 31, 1975.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELICISIMO MEDROSO, JR., accused-appellant. SYNOPSIS Convicted of the crime of homicide through reckless imprudence, accusedappellant assails the correctness of the penalty imposed by the trial court, alleging that since he has two mitigating circumstances in his favor, namely: voluntary surrender and plea of guilty, and none of the aggravating circumstances to offset them, he is entitled to a penalty next lower in degree than that prescribed by law for the offense pursuant o Article 64 of the Revised Penal Code. The Supreme Court held appellant's contention untenable because the offense charged is defined and penalized by Article 365, under which an accused is not entitled as a matter of right to the provisions of Article 64 of the Code. The Court corrected a slight error in the computation of the range of penalty but affirmed the decision in all other respects. SYLLABUS 1. CRIMINAL LAW; HOMICIDE THROUGH RECKLESS IMPRUDENCE; IMPOSITION OF PENALTY IN QUASI-OFFENSES LEFT TO THE SOUND DISCRETION OF COURTS; RATIONALE THEREFORE. Paragraph 5 of Article 365 expressly states that in the imposition of the penalties provided for in the Article, the courts shall exercise sound discretion without regard to the rules prescribed in Article 64. The rationale of the law can be found in the fact that in quasi-offense, the carelessness, imprudence or negligence which characterizes the wrongful act may vary from one situation to another, in nature, extent, and resulting consequences; and in order that there may be a fair and just application of the penalty, the courts must have ample discretion in its imposition without being bound by the mathematical formula under Article 64 of the Revised Penal Code. The trial court was not bound to apply paragraph 5 of Article 64 even if the accused had two mitigating circumstances in his favor with no aggravating circumstance to offset them. 2. ID.; ID.; ID.; APPLICATION OF THE INDETERMINATE SENTENCE LAW; IMPOSABLE PENALTY FOR HOMICIDE THRU RECKLESS IMPRUDENCE WITH VIOLATION OF THE AUTOMOBILE LAW. The penalty for homicide thru reckless imprudence with violation of the Automobile Law is prision correctional in its medium and maximum periods with a duration from years, four months. and one day to six years. Applying the Indeterminate Sentence Law the imposable penalty covers a minimum to be taken from the penalty one degree lower than that prescribed by law or arresto mayor in its maximum period to prision correccional in its minimum period, i.e. four months and one day to two years and four months, and a maximum to be taken from the penalty prescribed for the offense the duration of which is form two years, four months and one day to six years. The determination of the minimum and maximum terms is left entirely to the discretion of the trial court, the exercise of which will not be disturbed on appeal unless there is a clear abuse.

91 3. ID.; ID.; APPLICATION OF INDETERMINATE SENTENCE LAW IN HOMICIDE THROUGH RECKLESS IMPRUDENCE. The minimum of the indeterminate sentence in the crime of homicide through reckless imprudence is "two years and four months of prision correccional" instead of "two years, four months and one day," because with the addition of one day the minimum term falls within the range of the penalty prescribed for the offense in contravention of the provisions of the Indeterminate Sentence Law. 4. ID.; ID.; DAMAGES; REASONS FOR THE AWARD OF DAMAGES; COMPENSATORY DAMAGES MAY BE INCREASED AT DISCRETION OF TRIAL JUDGE. Moral damages compensate for mental anguish, serious anxiety, and moral shock suffered by the victim or his family as the proximate result of the wrongful act, and they are expressly recoverable where a criminal offense results in physical injuries which culminate in the death of victim. The sum of P12,000.00 has been fixed by the Supreme Court as compensatory damages for the death caused by a crime; but in proper cases, the courts may adjudge additional sums by way of moral damages and exemplary damages. 5. ID.; ID.; ID.; REASON FOR GIVING TRIAL JUDGE DISCRETION TO DETERMINE AMOUNT OF DAMAGES. The determination of the amount which would adequately compensate the victim or his family in a criminal case resulting in the death of the victim is left to the discretion of the trial judge whose assessment will not be disturbed on appeal, for there can be no exact or uniform rule for measuring the value of a human life and the measure of damages cannot be arrived at by precise mathematical calculation, but the amount recoverable depends on the particular facts and circumstances of each case. 6. ID.; ID.; ID.; EXEMPLARY DAMAGES ALLOWED WHERE DRIVER OF VEHICLE IS UNLICENSED. Award of exemplary damages is justified in a case of homicide through reckless imprudence where the accused, without having been issued by competent authority a license to drive a motor vehicle, willfully operated a dump truck and drove it in a negligent and careless manner as a result of which he hit a pedestrian who died from the injuries sustained by him. 7. ID.; ID.; ID.; REASON FOR IMPOSING EXEMPLARY DAMAGES. Exemplary damages are corrective in nature and are imposed by way example or correction for the public good and in the instant case, to deter others from taking into their hands a motor vehicle without being qualified to operate it on the highways thereby converting the vehicle into an instrument of death. DECISION The only question or issue involved in this appeal is the correctness of the judgment rendered by the Court of First Instance of Camarines Sur in Criminal Case No. 403 wherein accused-appellant, Felicisimo Medroso, Jr., on a plea of guilty, was convicted of "Homicide through reckless imprudence" and sentenced. "to suffer the penalty of, from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY, as minimum, to SIX (6) YEARS, as maximum, of prision correccional and ordered to pay the heirs of the deceased in the sum of P12,000.00 as actual damages, P4,000.00 as moral damages and P4,000.00 as exemplary damages, Philippine currency, and to pay the cost of this proceeding." (p. 11, Rollo) Sometime on August 6, 1971, the Provincial Fiscal of Camarines Sur filed with the local Court of First Instance an Information accusing the herein appellant, Felicisimo Medroso, Jr., of "Homicide through reckless imprudence" alleged to have been committed as follows:

92

"That on or about the 16th of May, 1971, in the barrio of San Roque, municipality of Bombon, province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without any license to drive motor vehicles issued by competent authority, did then and there wilfully and unlawfully manage and operate a BHP dump truck bearing Plate No. 7329, S. 1969 and with BHP truck No. 14-H3-12P and while passing along the said barrio in a negligent, careless and imprudent manner, without due regard to traffic laws, rules and regulations to prevent accident to persons and damage to property, caused by such negligence and imprudence, said truck driven and operated by him to bump and hit one Inigo Andes thereby causing his death." (p. 4, Rollo) The case was called for trial on July 18, 1972, on which date appellant with the assistance of his counsel pleaded guilty to the charge with two mitigating circumstances in his favor, viz: plea of guilty and voluntary surrender, to which the prosecuting fiscal offered no objection. In its decision, the trial court, presided by Hon. Delfin Vir. Sunga, after appreciating the above-mentioned mitigating circumstances and considering as an aggravating circumstance the fact that appellant drove the vehicle in question without a license, sentenced the accused as indicated above. Not content with the penalty imposed, accused appealed to the Court of Appeals. On September 19, 1973, the Appellate Court, through its Second Division at the time, certified the case to this Court on the ground that the appeal covers pure questions of law. Appellant is charged with homicide thru reckless imprudence for which the penalty provided for in Paragraph 6, sub-section 2 of Article 365 of the Revised Penal Code is prision correccional in its medium and maximum periods or from two years, four months and one day to six years. Appellant now contends that inasmuch as he has two mitigating circumstances in his favor without any aggravating circumstance, as driving without a license is not to be considered such, he is entitled to a penalty one degree lower than that prescribed by law pursuant to Article 64 of the Revised Penal Code 1 or, arresto mayor in its maximum period to prision correccional in its minimum period, that is, from "four months and one day to two years, four months and one day," and that applying the Indeterminate Sentence Law, the trial court should have imposed a minimum within the penalty still one degree lower, which is arresto mayor minimum and medium periods (1 month and 1 day to 4 months) and to a maximum of not more than two years, four months, and one day of prision correccional. Appellant's proposition would indeed be correct if he were charged with any of the offenses penalized in the Revised Penal Code other than Article 365 thereof. But because appellant is accused under Article 365, he is not entitled as a matter of right to the provisions of Article 64 of the Code. Paragraph 5 of Article 365 expressly states that in the imposition of the penalties provided for in the Article, the courts shall exercise their sound discretion without regard to the rules prescribed in Article 64. 2 The rationale of the law can be found in the fact that in quasi-offenses penalized under Article 365, the carelessness, imprudence or negligence which characterizes the wrongful act may vary from one situation to another, in nature, extent, and resulting consequences, and in order that there may be a fair and just application of the penalty, the courts

93 must have ample discretion in its imposition, without being bound by what We may call the mathematical formula provided for in Article 64 of the Revised Penal Code. On the basis of this particular provision, the trial court was not bound to apply paragraph 5 of Article 64 in the instant case even if appellant had two mitigating circumstances in his favor with no aggravating circumstance to offset them. In People vs. Agito, 1958, 103 Phil. 526, the accused, Simplicio Agito, was charged with triple homicide and serious physical injuries thru reckless imprudence before the Court of First Instance of Negros Occidental of Mindoro. He pleaded guilty and the trial court, applying Article 365, paragraph 6, subsection 2 of the Revised Penal Code, sentenced him to suffer an indeterminate penalty from one year and one day to three years, six months and twenty one days of prision correccional. The accused appealed questioning the propriety of the penalty imposed and appellant contended inter alia that the trial court erred in not considering the mitigating circumstance of plea of guilty so as to reduce the penalty to a minimum period. This contention was held by this Court to be untenable for to uphold it would be contrary to Article 365, paragraph 5, of the Revised Penal Code as amended by R.A. 384 which provides that "(I)n the imposition of these penalties (referring to the penalties defined in Article 365), the courts shall exercise their sound discretion without regard to the rules prescribed in Article 64." (Portion in parenthesis supplied) In the case now before Us, the penalty for homicide thru reckless imprudence with violation of the Automobile Law is prision correccional in its medium and maximum periods with a duration from two years, four months, and one day to six years. Applying the Indeterminate Sentence Law to which appellant is entitled 3 the imposable penalty covers a minimum to be taken from the penalty one degree lower than that prescribed by law or arresto mayor in its maximum period to prision correccional in its minimum period, i.e. four months and one day to two years and four months, and a maximum to be taken in turn from the penalty prescribed for the offense the duration of which is from two years, four months and one day to six years. The determination of the minimum and maximum terms is left entirely to the discretion of the trial court, the exercise of which will not be disturbed on appeal unless there is a clear abuse. 4 The penalty imposed by the trial court is well within the periods we have given above except for the one day excess in the minimum thereof. The minimum of the indeterminate sentence given by His Honor the trial Judge should have been "two years and four months of prision correccional" instead of "two years, four months and one day", because with the addition of one day the minimum term fell within the range of the penalty prescribed for the offense in contravention of the provisions of the Indeterminate Sentence Law. On this score, there is need to correct the minimum of the indeterminate penalty imposed by the court a quo. As regards the second issue raised by appellant, We do not find any reversible error in the judgment awarding to the heirs of the deceased P4,000.00 as moral damages and another P4,000.00 as exemplary damages in addition to P12,000.00 by way of actual damages. Moral damages compensate for mental anguish, serious anxiety and moral shock suffered by the victim or his family as the proximate result of the wrongful act, 5 and they are expressly recoverable where a criminal offense results in physical injuries as in the instant case before Us which in fact culminated in the death of the victim. 6

94 In People vs. Pantoja, L-18793, Oct. 11, 1968, 25 SCRA 468, this Court fixed the sum of P12,000.00 as compensatory damages for a death caused by a crime (Art. 2206 of the Civil Code) and it was there stated that, in proper cases, the courts may adjudge additional sums by way of moral damages and exemplary damages. The determination of the amount which would adequately compensate the victim or his family in a criminal case of this nature is left to the discretion of the trial judge whose assessment will not be disturbed on appeal unless there is a manifest showing that the same is arbitrary or excessive, for it has been said that "(T)here can be no exact or uniform rule for measuring the value of a human life and the measure of damages cannot be arrived at by precise mathematical calculation, but the amount recoverable depends on the particular facts and circumstances of each case." (25 C.J.S., 1241, cited in Alcantara vs. Surro, et al., 93 Phil. 472, 477) With respect to the exemplary damages awarded by the trial court, the same are justified by the fact that the herein appellant without having been issued by competent authority a license to drive a motor vehicle, wilfully operated a BHP dump truck and drove it in a negligent and careless manner as a result of which he hit a pedestrian who died from the injuries sustained by him. Exemplary damages are corrective in nature and are imposed by way of example or correction for the public good (Art. 2229, Civil Code), and the situation before Us calls for the imposition of this kind of damages to deter others from taking into their hands a motor vehicle without being qualified to operate it on the highways thereby converting the vehicle into an instrument of death. WHEREFORE, the appealed decision is hereby MODIFIED in that the minimum term is reduced by reduced by one day. The herein appellant is sentenced therefore to an indeterminate penalty ranging from TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum to SIX (6) YEARS also of prision correccional as maximum. In all other respects, the decision stands. Without pronouncement as to costs.

[G.R. No. L-32495. August 13, 1975.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FLORENTINO MOISES Y SANIDAD, EUSEBIO MOISES Y SANIDAD, and BALTAZAR MOISES Y SANIDAD, defendants-appellants. SYNOPSIS Based on testimony of the lone prosecution witness, who positively identified the accused, the trial court found the accused guilty of murder. Florentino and Eusebio Moises were each sentenced to death while Baltazar Moises, a minor at the time of the commission of the offense, was sentenced to an indeterminate penalty of from 10 years of prison mayor, as minimum, to 14 years and 21 days of reclusion temporal. The Supreme Court affirmed the imposition of the death penalty for failure to the defense to discredit and destroy the testimony of the lone prosecution witness; modified the indeterminate sentence imposed on Baltazar Moises to not less than 10 years of prison mayor and not more than 17 years and 14 mouths of reclusion temporal. SYLLABUS 1. EVIDENCE; WITNESSES; RELATIONSHIP WITH VICTIM DOES NOT AFFECT CREDIBILITY. That the prosecution eyewitness is related to the victim does not necessarily mean that he is biased or prejudiced against the

95 accused, there being no sufficient showing that he was impelled by ulterior motives in testifying against the accused. As long as the testimony of a witness who is related to the victim is clear, convincing and corroborated, the same is worthy of credence. 2. ID.; ID.; TESTIMONY; FAILURE TO DISCREDIT PROSECUTION WITNESS RENDERS ALIBI ENERVATED, USELESS AND ABSURD. Where the defense failed to discredit and destroy the testimony of the lone principal witness for the prosecution, the respective alibi for the accused become enervated, useless and absurd. Settled is the rule that the defense of alibi cannot be entertained when the accused has been positively identified by eyewitness. Alibi cannot prevail over positive testimonies of witnesses identifying and showing that the accused was indeed present at the place where the offense occurred. 3. ID.; ID.; ID.; CREDIBILITY; APPELLATE COURT WILL NOT INTERFERE WITH TRIAL COURT'S FINDINGS. In the absence of any fact or circumstance of weight and influence which had been overlooked or the significance of which has been misconstrued as to impeach the finding of the trial court, the appellate courts will not interfere with the court's findings of the credibility of witnesses, or set aside its judgment, considering that it is a better position to decide the question, having heard and observed the witnesses during the trial. 4. MURDER; PENALTY THEREFOR. Where the commission of the crime was attended by the aggravating circumstances of evident premeditation and abuse of superior strength, with no mitigating circumstances to offset them, the imposition of the maximum penalty of death upon the accused is justified. 5. ID.; ID.; INDETERMINATE SENTENCE LAW APPLIED. When the penalty actually imposed upon the accused who was a minor at the time of the commission of the crime is not death, he is entitled to the benefits of the Indeterminate Sentence Law.

[G.R. No. L-30713. April 30, 1976.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICTORINO SUMAYO Y BERSEBAL, ET AL., defendants, VICTORINO SUMAYO Y BERSEBAL, ANTONIO JUANlNGO Y PESEBRE, and JESUS SALLAN Y PAZ, defendants-appellants. SYNOPSIS Appellants were charged with and convicted by the lower court of the crime of Robbery with Homicide under Article 294 of the Revised Penal Code. Two were sentenced to suffer the penalty of death; to indemnify the heirs of the offended party in the amount of P12,030, jointly and severally, and to pay the proportionate share of the costs. The other one was sentenced to suffer the penalty of reclusion perpetua; to indemnify the heirs of the offended party in the amount of P121,030 jointly and severally with the two other appellants and to pay the costs. The Supreme Court affirmed the penalty of death imposed by the trial court on two of the appellants of death but modified the judgment of reclusion perpetua imposed on the third appellant, because the latter being then only 17 years old at they time of the commission of the crime, and there being no aggravating or mitigating circumstance appreciated against him, the Indeterminate Sentence Law was applied , sentencing him to suffer a minimum of not less than 10 years of

96 prision mayor and a maximum of not more than 17 years and 4 months not reclusion temporal. SYLLABUS 1. CONFESSION; EXTRA-JUDICIAL; VOLUNTARINESS. The fact that not one the accused complained to the Assistant Fiscal at the time he signed the sworn statements that the latter were extracted by force or intimidation from those subsribing to them and the candid admission of one of the accused, who at the time he testified could not have foreseen that he would be acquitted that he voluntarily signed his sworn statements and was not maltreated and the circumstance that said particular accused was investigated together with the other accused, on the same night and in the same place, in the presence of other people, constitute the most convincing argument that the three (3) sworn statements were really signed voluntarily by the accused. 2. ID.; ID.; ADMISSIBILITY. When the sworn statements are consistent and persistent in many material details, the same are admissible against the accused on the doctrine of interlocking confessions as corroborative evidence. 3. CRIMINAL LAW; CONSPIRACY; PARTICIPANTS LIABLE AS PRINCIPALS. Where as in the case at bar, the accused were armed when they agreed to commit robbery all should be held liable as principals for the consequences of the criminal act, more so, where no one did anything to prevent it from being carried out. 4. ID.; AGGRAVATING CIRCUMSTANCE; RECIDIVISM, A CASE OF. Participants in the crime of robbery who had been previously convicted by final judgment of another offense embraced in the same title of the Revised Penal Code are recidivists and as such the aggravating circumstances of redicidivism applies against them. 5. ID.; PENALTIES; DEATH PENALTY; IMPOSITION OF, WHERE THERE ARE TWO AGGRAVATING CIRCUMSTANCE. The attendance of the aggravating circumstance of recidivism in the commission of the crime of robbery with homicide which was perpetrated at nighttime, facilitating the commission of robbery, justified the imposition of death penalty against the accused. 6. ID.; ID.; RECLUSION PERPETUA UPON A MINOR; INDETERMINATE SENTENCE LAW; APPLICATION OF. Where one of the accused was only 17 years old at the time he committed the crime, under paragraph 2 of Article 68 of the Revised Penal Code, the proper penalty must be one degree lower than that prescribed by law in its proper period. The penalty prescribed by law (Art. 294 of the Revised Penal Code ) for the crime committed is reclusion perpetua to death (two indivisible penalties). The penalty next lower in degree is reclusion temporal, or 12 years and 1 day to 20 years (Art. 61, par. 2 Revised Penal Code). Reclusion temporal is a divisible penalty that has three periods (12 years and 1 day to 14 years and 8 months as minimum; 14 years 8 months and 1 day to 17 years and 4 months as medium; 17 years, 4 months and 1 day to 20 years as maximum). The crime having been committed without any aggravating or mitigating circumstances, insofar as said accused is concerned, the penalty in its medium period must be imposed. Applying the Indeterminate Sentence Law the proper indeterminate penalty for said accused is a minimum of not less than ten (10) years of prision mayor and a maximum of not more than 17 years and 4 months of reclusion temporal.

97 [G.R. No. L-28397. June 17, 1976.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME JOSE and GEORGE TILLMAN, defendant-appellant. SYNOPSIS Appellants were charged with two crimes Robbery and Forcible Abduction with Rape before the Court of First Instance of Rizal. Acquitted in the case of Robbery they were convicted of Forcible Abduction with Rape. In affirming the judgment of conviction the Supreme Court held that it had no reason to alter or reverse the findings and conclusion of the trial court founded as it was on the trial judge's superior vantage point for the ascertainment of truth and the detection of falsehood from direct observation of the witness on the stand. The Court ruled, however that the death sentence cannot be imposed upon Tillman as there was in his favor the circumstance of being less than eighteen years of age when he committed the crime. Being entitled to a penalty one degree lower than that provided by law, the next lower penalty imposable is reclusion temporal which is the next lower penalty to reclusion perpetua to death penalty prescribed by law for the crime of forcible abduction with Rape. Applying the Indeterminate Sentence Law, the court reduced the penalty to ten (10) years and one day, as minimum to seventeen years and one day as maximum. In view of the death of the other defendant Jaime Jose who was executed for a similar capital offense before the rendition of final judgment herein, the case at bar was dismissed as to him and he was relieved of all personal and pecuniary penalties attendant to his crime. Judgment affirmed with modification. SYLLABUS 1. WITNESSES; TESTIMONY; MINOR DISCREPANCIES DO NOT MATERIALLY AFFECT ITS INTRINSIC VALUE. Where the trial court heard and observed the prosecution witnesses testify that the substance of the testimony of one of the witnesses argue favorably to the truth of her testimony, and that what said witness told was the whole truth, the fact that there were minor discrepancies in her testimony, did not materially affect its intrinsic value. 2. EVIDENCE; SUPPRESSED EVIDENCE, CASE OF. The failure of the defense to present available corroborating evidence raises the presumption that had the same been presented, such evidence would had been adverse. 3. ID.; WHEN NOT FORMALLY OFFERED DURING TRIAL, MAY BE CONSIDERED ON APPEAL. Although a piece of evidence consisting of the duly authenticated birth certificate of an accused was not formally offered in evidence during the trial, the same will be considered on appeal in the exercise of the Court's sound discretion disregarding sheer technicality that may overcome its sense of justice in considering the merits of the case where there exists no doubts as to its veracity. 4. CRIMINAL LAW; CRIMINAL LIABILITY DEEMED EXTINGUISHED UPON DEATH OF ACCUSED. Where accused was executed, as his penalty for another capital offense, before final judgment in another pending capital offense against him, the latter will be dismissed, and he will relieved of all personal and pecuniary penalties attendant to the latter crime. 5. ID.; INDETERMINATE SENTENCE LAW; APPLICATION ; CASE OF. Where the accused was less that 18 years old at the time he committed the crime, under Article 68, par. 2, of the Revised Penal Code, he is entitled to a penalty one degree lower than that provided by law. The penalty for the complex crime of forcible abduction with rape is reclusion perpetua to death because it was

98 committed with the use of a deadly weapon and by two or more persons. All the aggravating circumstances that attended the commission of the crime considered, the penalty of death should be imposed on him. But because of his minority, the next lower penalty to be imposed upon him should be reduced to reclusion temporal which is the next lower penalty to reclusion perpetua to death which is the penalty prescribed by law for rape under Article 335, par. 3 of the Revised Penal Code. Applying the Indeterminate Sentence Law, the proper penalty to be imposed on the accused should be reduces to ten (10) years and one (1) day, as minimum to seventeen (17) years and one (1) day as maximum.

[G.R. No. L-27481. July 28, 1977.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFONSO OATE alias Bukay, defendant-appellant. DECISION Appeal from a judgment of conviction of appellant for murder and imposing upon him the penalty of "cadena perpetua" (should be reclusion perpetua) of the Court of First Instance of Negros Occidental in Criminal Case No. 9040, entitled People of the Philippines vs. Alfonso Oate alias Bukay, the dispositive portion of which reads thus: "WHEREFORE, in view of the foregoing, the Court finds that the prosecution has established the crime of murder conclusively and beyond reasonable doubt, it appearing that the killing was attended by the qualifying circumstance of alevosia. Hence, the accused is hereby declared guilty of murder, under Art. 248 of the Revised Penal Code, and, in the absence of any mitigating or aggravating circumstance, the penalty shall be imposed in its medium period, and he is hereby sentenced to cadena perpetua, and to indemnify the heirs of the deceased the sum of P6,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs." (Pp. 11-12, Record.) Even before the trial in the court below, appellant already admitted having killed the offended party, Peping Ventosa, by proposing to plead guilty to the crime of homicide, but this offer was rejected by the trial judge. And so, in this appeal, he has assigned only two errors, namely: "I. The lower court erred in not appreciating the voluntary surrender of the accused as a mitigating circumstance. "II. The lower court erred in holding that the stabbing of the deceased was attended by the qualifying circumstance of alevosia to qualify the stabbing as murder." (Page 39, Rec.). There is indeed a certification found in page 18 of the record of the proceedings in the trial court which appears to be signed by Lt. Col. Domingo C. Tutaan, Inf. (PC) Provincial Commander, to the following effect: LLjur "27 October 1966 "CERTIFICATION "THIS IS TO CERTIFY that ALFONSO OATE, a detained prisoner has voluntarily surrendered to this Hq. at about 180800 Oct. 1986. Presently he is detained with our PC stockade, Provl. Hqs. Neg. Occ. PC, Bacolod City. However subject will be turned over to Provl. Jail today for safekeeping.

99 "This certification is issued in connection with the request of Pat. Roberto Fernandez of Bacolod Police Dept., Bacolod City for whatever purpose deemed necessary." (Page 18, Record of lower court.) The obvious reason why no mention of this certification was made in the decision of the trial court is because it does not appear that the same was formally offered as evidence by the defense. We can overlook such oversight as, anyway, the Solicitor General does not impugn the genuineness and truthfulness of the certificate and, in fact, recommends that on the basis thereof, appellant be credited with the mitigating circumstance of voluntary surrender. Anent the second assignment of error, it is to be observed that the trial judge, Hon. Jose F. Fernandez, deferred consideration of the offer of appellant to plead guilty to the lighter offense of homicide until after he heard the evidence of the prosecution, hence it must be presumed that His Honor carefully weighed all relevant circumstances including the demeanor of the witnesses who testified before him regarding the sole basic factual issue he had to decide, namely, whether or not the admitted killing of Peping Ventosa by appellant was attended by "alevosia" or treachery. After the trial, His Honor concluded as follows: "The accused admits having stabbed Jose Ventosa in the evening of October 15, 1966, and, announced during the trial that he was ready to plead guilty to homicide, not murder. He stated that in the evening of October 15, 1966, he and his companions, together with Jose Ventosa, drunk 'tuba' in a 'sari-sari' store in Burgos Street, Bacolod City, but Jose Ventosa left without paying for his drink so he (Oate) was asked to pay for it by the storekeeper but instead he promised to collect the amount from Jose Ventosa; that while he and his two companions were standing near the corner of Lacson-Burgos Streets, Bacolod City, shortly after leaving the store, he saw Jose Ventosa walking towards the direction of the Provincial Hospital in front of Funeraria Alisbo in Lacson Street, so he asked his companions to approach Jose Ventosa for the payment of the 'tuba' but his companions refused whereupon he himself accosted Jose Ventosa and demanded payment but Ventosa laid hands upon him, grabbing him by his collar and pushing him back and forth until he fell to the ground, after which Jose Ventosa dipped his hand unto his pocket as if to fish for something in his pocket, so, fearing for his life, he drew his knife and stabbed Jose Ventosa. "This pretension of the accused was roundly denied by the eyewitnesses Rebecca Sy and Jimmy Tajanlangit. Rebecca Sy stated that she was seated in front of a store next to Funeraria Alisbo for she was selling 'tuba' in the evening in question when Jose Ventosa came and asked for a glass of 'tuba' but she answered that all her 'tuba' had been consumed whereupon Ventosa turned around and walked towards the direction of the Provincial Hospital; that Ventosa had not gone far when she saw the accused who, without saying a word, placed his hand on the shoulder of Ventosa and stabbed him with a knife hitting him in his side and in his forehead. "Jimmy Tajanlangit, one of the two companions of the accused in the evening in question, denied that the deceased provoked a quarrel with the accused. He stated that when they saw Jose Ventosa the accused asked him and his companion to approach Jose Ventosa for his unpaid drink but he was afraid and refused, whereupon the accused himself accosted Jose Ventosa and, once close to him, suddenly stabbed the deceased in his right side and forehead. "The record shows that the testimony of Rebecca Sy and Jimmy Tajanlangit have not been impugned nor in any manner disproven by the accused. Their testimonies are free from any material contradiction and the accused has not

100 shown any motive whatsoever that these eyewitnesses were impelled by any malicious or false motive in testifying in the manner they did. 'As appellant met the deceased walking along the street appellant suddenly and without any warning pulled out a bolo under his shirt and with full strength trust it upon the body of Fernandez. Fernandez fled and appellant continued to chase him and struck him again until he finally fell. Held: There is no doubt that the sudden attack made upon Fernandez without any warning was accompanied by treachery thereby qualifying the killing as murder. People vs. Dosal, G. R. Nos. L-421516.'" (Pp. 9-11, Record.). We have read the complete transcript of the proceedings in the trial court and carefully scrutinized the testimonies of appellant and his lone witness Rogelio Tobola, in the light of the opposite versions of the eyewitnesses of the prosecution Tajanlangit and Sy. While it does seem, as contended by counsel for appellant in his brief and in his memorandum in the court below, rather strange and unnatural that appellant would unceremoniously and suddenly assault Ventosa only because the latter left the store without paying for the "tuba" he had drunk, thus causing the storekeeper to try to collect the P0.20 payment therefor from the appellant and his companions, Tajanlangit and Edmundo Cailo, such apparently unusual circumstance finds sufficient explanation in the fact that, as was shown by the prosecution thru the testimonies of three witnesses, namely, Porfirio Acrobillas, a policeman, George Valencia and Fernando Valencia, appellant is a man prone to resorting to the use of his bladed weapon, notwithstanding protestations made by him on the witness stand to the contrary. In other words, there is enough basis in the record for Us to rely on the conclusions of fact of the trial court as regards the decisive issue of credibility raised by appellant in his second assignment of error. It is almost trite to reiterate that "time and again, We have held that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court, considering that it is in a better position to decide the question, having heard the witnesses and observed their deportment and manner of testifying during trial, unless it has plainly overlooked certain facts of substance and value that, if considered, might affect the results of the case." 1 Appellant capitalizes on some alleged discrepancies in details between the testimonies of the physician and of Tajanlangit as well as between that of the latter and of the other eyewitness Rebecca Sy. But apart from the fact that the trial judge was diligent enough to iron out some of the apparent discrepancies referred to, the rest of them are related to merely insubstantial matters, which, as We have uniformly held, lend weight rather than detract from the credibility of the evidence. 2 There can be no doubt, therefore, as to the guilt of appellant of the crime of murder charged, qualified by "alevosia." However, he must be credited with mitigating circumstance of voluntary surrender, for which reason, the Solicitor General recommends that in lieu of the life imprisonment imposed by the trial court, the appellant be sentenced to an indeterminate penalty of imprisonment ranging from twelve years and one day of reclusion temporal, as minimum, to eighteen years, two months and one day of reclusion temporal, as maximum. In this connection, in People vs. Pantoja, 25 SCRA 468, it was held that "(t)he penalty for murder is reclusion temporal in its maximum period to death. (Art. 248, Revised Penal Code.) There being one mitigating circumstance, voluntary surrender, the penalty should be reclusion temporal in its maximum period in relation to the Indeterminate Sentence Law", and the sentence actually imposed by the Court was the indeterminate penalty of from 15 years to 20 years of reclusion temporal. cdphil

101 We believe, however, that considering the age of the appellant, as well as other relevant factors in this case, it would be more in keeping with the spirit and intent of the Indeterminate Sentence Law, which is "to uplift and redeem valuable human material and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness," (Peo. vs. Ducosin, 59 Phil. 109, 117), to be guided instead by Our holding in People vs. Manansala Jr. et al., 31 SCRA 401, as follows: ". . . the penalty imposable upon him is the minimum period of the penalty for murder (see par. 3, Art. 63, Revised Penal Code), which is reclusion temporal maximum (17 years, 4 months and 1 day to 20 years). Since the resulting penalty is neither death nor life imprisonment, the Indeterminate Sentence Law applies (Sec. 2, Act No. 4103 as amended). Avelino Manansala is therefore entitled to an indeterminate sentence, the upper range of which is reclusion temporal maximum and the lower range which is one degree lower than the penalty prescribed by the Revised Penal Code for murder is anywhere within prision mayor maximum (10 years and 1 day) to reclusion temporal medium (17 years and 4 months). The penalty meted out by the trial court on Avelino Manansala, Jr. 'from 10 years and 1 day of prision mayor to 17 years, 4 months and 1 day of reclusion temporal' is within the range allowed by law and is therefore correctly imposed." Besides, the gap between the minimum of fifteen (15) years and the maximum of twenty (20) years is too short. The law is intended to favor the defendant, particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental and moral record as a prisoner, to be determined by the Board of Indeterminate Sentence. The law grants the courts discretion to fix the minimum of the penalty to be imposed, with the limitation that it must be within the range of the penalty next lower in degree to that prescribed by the Revised Penal Code for the offense committed. Thus, this Court, in People v. Gonzales, 3 stated: "According to section 1 of Act No. 4225, the minimum of the indeterminate penalty 'shall be within the range of the penalty next lower to that prescribed by the Code for the offense' and the penalty for each offense is provided by the Code without regard to circumstances modifying criminal liability. In other words, for purposes of the Indeterminate Sentence Law, the penalty next lower should be determined without regard as to whether the basic penalty provided by the Code should be applied in its maximum or minimum period as circumstances modifying liability may require. When, however and this may be the only exception to the rule the number of mitigating circumstances is such as to entitle the accused to the penalty next lower in degree, this penalty, in the application of the Indeterminate Sentence Law, should be taken as the starting point for the determination of the penalty next lower." The determination, however, of the minimum is not a mechanical act of computation, but a consideration of various factors, keeping in mind the basic purpose of the law. As explained in People v. Ducosin: 4 "The determination of the 'minimum' penalty presents two aspects: first, the more or less mechanical determination of the extreme limits of the minimum imprisonment period; and second, the broad question of the factors and circumstances that should guide the discretion of the court in fixing the minimum penalty within the ascertained limits. xxx xxx xxx

102 "We come now to the second aspect of the determination of the minimum penalty, namely, the considerations which should guide the court in fixing the term or duration of the minimum period of imprisonment. Keeping in mind the basic purpose of the Indeterminate Sentence Law 'to uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness' (Message of the Governor-General, Official Gazette No. 92, Vol. XXXI, August 3, 1933), it is necessary to consider the criminal, first, as an individual and, second, as a member of society. This opens up an almost limitless field of investigation and study which it is the duty of the court to explore in each case as far as is humanly possible, with the end in view that penalties shall not be standardized but fitted as far as is possible to the individual, with due regard to the imperative necessity of protecting the social order. "Considering the criminal as an individual, some of the factors that should be considered are: (1) His age, especially with reference to extreme youth or old age; (2) his general health and physical condition; (3) his mentality, heredity and personal habits; (4) his previous conduct, environment and mode of life (and criminal record if any); (5) his previous education, both intellectual and moral; (6) his proclivities and aptitudes for usefulness or injury to society; (7) his demeanor during trial and his attitude with regard to the crime committed; (8) the manner and circumstances in which the crime was committed; (9) the gravity of the offense (note that section 2 of Act No. 4103 excepts certain grave crimes this should be kept in mind in assessing the minimum penalties for analogous crimes). "In considering the criminal as a member of society, his relationship, first, toward his dependents, family and associates and their relationship with him, and second, his relationship towards society at large and the State are Important factors. The State is concerned not only in the imperative necessity of protecting the social organization against the criminal acts of destructive individuals but also in redeeming the individual for economic usefulness and other social ends. In a word, the Indeterminate Sentence Law aims to individualize the administration of our criminal law to a degree not heretofore known in these Islands. With the foregoing principles in mind as guides, the courts can give full effect to the beneficent intention of the Legislature." It was for the purpose of giving substance to the purpose of the law that this Court, in previous cases of murder where there was one mitigating circumstance and no aggravating circumstances, had usually imposed upon the accused an indeterminate penalty ranging from ten (10) years and one (1) day of prision mayor as minimum of the penalty, to either seventeen (17) years or eighteen (18) years of reclusion temporal as the maximum of the penalty. 5 The minimum of ten (10) years and one (1) day of prision mayor was set obviously to give sufficient incentive for the culprit to rehabilitate himself morally and socially to "redeem the individual for economic usefulness and other social ends." prcd Likewise, pursuant to Pantoja, the indemnity of P6,000 awarded by the trial court should be increased to P12,000. WHEREFORE, the judgment of conviction appealed from is affirmed, but the penalty imposed is modified, and appellant Alfonso Oate is sentenced to suffer an indeterminate penalty of ten (10) years and one (1) day of prision mayor to seventeen (17) years, four (4) months and two (2) days of reclusion temporal, to indemnify the heirs of Jose Y. Ventosa in the amount of P12,000, and to pay the costs.

103 [G.R. No. L-30271. June 15, 1979.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONARDO DAHIL, defendant-appellant. DECISION This is an appeal from the decision of the Court of First Instance of Rizal, Branch XI, in Criminal Case No. 15893, convicting the defendant-appellant Leonardo Dahil of the crime of qualified theft and sentencing him to suffer the penalty of reclusion perpetua. 1 The record discloses that in the morning of October 6, 1966, former Assistant City Fiscal, now Municipal Judge, Benjamin Abalos discovered that his 4-door sedan, Toyota Crown de Luxe, Model 1966 with a value then of P15,400.00 was not on the driveway of his house in Mandaluyong, Rizal, where he had parked it the day before. Realizing that his car had been stolen, he immediately reported the matter to the Mandaluyong Police Department. Benjamin Abalos also sought the assistance of the Police Departments of Pasay City, Pateros, Taguig and Manila. Benjamin Abalos personally searched for his car with the help of one Sgt. Eusebio of the Pasay City Police Department. 2 Finally, through the assistance of said Sgt. Eusebio, the complainant, Benjamin Abalos, was able to locate and recover his car somewhere in Malate, Manila in the yard of Virgilio Apolinario who was prosecuted and convicted of the crime of qualified theft in Criminal Case No. 15893 of the Court of First Instance of Rizal. After the arrest of Virgilio Apolinario, he executed an affidavit on November 8, 1966, the pertinent portion of which reads: LLpr "4. Maaari mo bang isalaysay sa akin ang mga pangyayari kung bakit ikaw ay nasangkot sa pagnanakaw ng isang auto na iyong sinasabi? Nuong pong humigit kumulang sa 1:00 ng umaga petsa ika-29, 1966 ako po at si Kamlon (the affiant does not know the real name of said KAMLON) ay nakaupo sa isang banko sa isang daang San Juan, sakop ng Lungsod ng Pasay, at nuon ay dumaan nuon si Nardo (Leonardo Dahil) na nakasakay sa isang taxi, at nuon ay tinawag niya si Kamlon at sila ay nag-usap, makaraan ang ilang sandali ay tinawag nila ako at sinabi sa aking sumama lang daw ako sa kanila, kung kaya ako ay sumakay din at kami ay nagpunta sa Mandaluyong, Rizal at ako ay ibinaba sa panulukan ng Gen. Kalentong at daang Shaw Blvd., Mand., Rizal. Samantalang sila ay lumipat sa ibang taksi at sinabing mayroon lamang silang pupuntahan. Wala pang kalahating oras ay nagbalik si Nardo doon sa panulukan ng Gen. Kalentong at Shaw Blvd. at ako ay tinawag at ako ay sumakay na rin sa kanyang taksing sinasakyan at kami ay nagpunta sa isang lugar na di ko alam ngunit alam ko pong sakop pa rin ng Mandaluyong, at doon ay nakita ko si Kamlon na nagiintay sa harap ng Apartment. At nuon ay bumaba na kami at ako ay naiwan sa harap ng nasabing apartment at si Nardo at Kamlon ay pumasok sa bukas ng tarangkan ng 'Carport' at sumakay si Nardo sa kotseng nakagarahe doon (the affiant pointing to the Toyota Car, painted white, Model-66 with plate No. Temp4527) at si Kamlon ay itinulak ng papalabas ang nasabing kotse, at ng ito ay nasasa labas na ay pinaandar na ni Nardo, at ng umandar na ang nasabing kotse ay sumakay na kami at dito ay minaneho ni Nardo hanggang doon sa amin at ang ginawa ko ay binuksan ko ang garahe namin at ipinasok na roon ang kotse at ang ginawa ko ay isinara ko na. At nuon ay sinabi sa amin ni Nardo na "Tatlong araw lamang ay maypera na tayo'. At kami ay naghiwahiwalay na. 5. Hindi mo ba alam ang tunay na pangalan ni Kamlon?

104

Hindi po, sa tawag na Kamlon ko lamang nakilala yon. 6. Alam mo ba kung saan umuuwi si Nardo (Leonardo Dahil) at si Kamlon?

Si Kamlon po at si Leonardo Dahil ay sa panulukan ng Harrison at San Juan naninirahan. (San Juan and Harrison St., Pasay City)" 3 Thereafter defendant-appellant Leonardo Dahil was charged with the crime of qualified theft before the Court of First Instance of Rizal in the following: "INFORMATION The undersigned Assistant Fiscal accuses Leonardo Dahil of the crime of Qualified Theft, committed as follows: That on or about the 29th day of October, 1966, in the Municipality of Mandaluyong, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, together with Virgilio Apolinario y Tagorda, who has already been convicted and sentenced by this Court, and John Doe alias 'Kamlon', whose true identity and whereabouts is still unknown, conspiring and confederating together and mutually helping and aiding one another, with intent of gain, with grave abuse of confidence and without the knowledge and consent of the owner thereof, did, then and there willfully, unlawfully and feloniously take, steal and carry away a motor vehicle, a four-door sedan Toyota Crown de Luxe, Model 1966, then with temporary license plate No. 4527 (Philippines, 1966), with original white paint, and valued at P15,400.00, belonging to one Benjamin Abalos, to the latter's damage and prejudice in the afore-stated amount of P15,400.00. Contrary to law. Pasig, Rizal, August 4, 1967. (Sgd.) JOSE P. SANTOS Assistant Fiscal" 4 Defendant-appellant pleaded not guilty and denied any participation in the commission of the crime. The lower court after trial rendered under date of July 25, 1968 its judgment of conviction, finding defendant-appellant guilty of qualified theft and sentencing him to reclusion perpetua, as follows: "The crime committed by the accused Leonardo Dahil, alias Nardo, carries with it the penalty of prision mayor in its minimum and medium periods, considering that the value of the car stolen is P15,400.00 (Art. 309, par. 1). But since the crime is qualified theft because the property stolen is a motor vehicle, the penalty must be higher by two degrees (See Art. 310, Revised Penal Code). The penalty to be imposed on the accused must therefore be reclusion perpetua." The trial court rejected defendant-appellant's raising of the question of his identity as a defense and refused to believe the disclaimer of the witness Virgilio Apolinario, who had previously been convicted and sentenced as a co-principal with the defendant-appellant for the theft of the same vehicle, that the defendantappellant was not the same person who in company with a third co-principal, Kamlon, had brought the stolen Toyota car to his yard, analyzing the evidence of the parties, as follows: "On the other hand, the evidence of the defense is merely a denial of the imputation against him. . . .

105

"On cross-examination, the accused Leonardo Dahil, alias Nardo, admitted that he is at present answering for the crime of Frustrated Murder he allegedly committed before the Pasay Court of First Instance. Also, he admitted that he was accused of robbery with physical injuries, but because the accused Leonardo Dahil, alias Nardo, went into hiding, the offended party's interest to prosecute the case waned, and the case has been dismissed. Further, Leonardo Dahil, alias Nardo, admitted that there were so many warrants of arrest issued against him which he had signed and the contents of which he does not know. "The Court, after analyzing the evidence, finds that the herein accused Leonardo Dahil, alias Nardo, raised the question of his identity as a defense. It must be remembered, however, that in the affidavit, Exhibit A-Dahil, which has been introduced during the trial of Virgilio Apolinario, Virgilio stated that one Kamlon and Leonardo Dahil went to his house between 1:00 and 2:00 o'clock a.m. to invite him and left the car in question in the yard of his house. However, while testifying in the instant case, Virgilio Apolinario states that Leonardo Dahil who is now in court on trial is not the same person who, in company with Kamlon, brought the Toyota car to his yard. The Court refuses to believe him. The law presumes that identity of name is identity of person. Besides, in Crim. Case No. 15893 for the theft of the same car where Virgilio Apolinario has been prosecuted and convicted, his defense was that his affidavit, Exhibit A-Dahil, wherein he admitted that the Toyota car of Fiscal Abalos has been left in his yard by Kamlon and the accused Leonardo Dahil, has been extracted from him by means of force and threats. However, in the instant case, when Virgilio Apolinario was called by the prosecution to testify, he admits what has been stated in his affidavit, 'Exhibit A-Dahil', 'that Kamlon and Leonardo Dahil, alias Nardo, have brought the Toyota car of Fiscal Abalos in his yard,' but that Leonardo Dahil, alias Nardo, named in his said affidavit, is not the same person now in Court. He has two versions of his affidavit to suit his convenience and the convenience of his friend, Leonardo Dahil, alias Nardo. "This squid tactic of Virgilio is the modus operandi of criminals. They deny or pretend not to know their companions in the commission of the crime in order to confuse the police authorities as well as the Court. With the two criminal cases for frustrated murder and robbery filed against him and the many warrants of arrest issued for his apprehension as a background in the instant case, the Court has absolutely no doubt that Leonardo Dahil, alias Nardo, in company with one Kamlon, brought the car of the offended party to Virgilio's yard after the said car has been stolen by the two, Kamlon and Nardo. "Another reason why the Court does not believe in the testimony of this witness is that he stated, when asked about his personal circumstances, that he is a businessman, when the truth is, he is a mere cook in his father's restaurant, receiving a paltry sum of P20.00 a week." On appeal, defendant-appellant through his counsel de oficio, Atty. Salvador San Juan, in a well-written brief made the following assignment of errors: LibLex "I. The lower court erred in giving credit to the extrajudicial confession of Virgilio Apolinario, Exhibit 'A'; and "II. The lower court erred in not acquitting defendant-appellant on the ground that his participation in the commission of the offense charged has not been established beyond reasonable doubt."

106 The errors assigned boil down to the question of whether the prosecution had sufficiently established beyond reasonable doubt the appellant's participation in the theft in that according to Virgilio Apolinario's sworn statement (which was duly submitted in evidence by the prosecution) defendant-appellant was the one who drove away the stolen Toyota car after Kamlon had pushed it from the carport of the owner's house and that the three of them thereafter drove away and hid the car in the yard of his house in Malate. In turn, this revolves on the identity of defendant-appellant Leonardo Dahil as pointed out of Virgilio Apolinario himself, together with other identifying data such as his address and record of arrests, although at the trial Apolinario sought to save defendant-appellant by brazenly declaring that defendant-appellant who was in court was not the same person who had driven the stolen car to his yard. Upon a review of the record and the evidence, the Court is not inclined to agree with the brief manifestation of then Solicitor General Felix Q. Antonio, now a member of this Court, believing the disclaimer of Apolinario and stating that "hence, the evidence is too meager to produce certainty beyond reasonable doubt of appellant's guilt in this case," and, therefore, recommending appellant's acquittal, as follows: "WHEREFORE, appellee is constrained to agree with the argument in appellant's brief that the participation of the appellant in the offense charged has not been established beyond reasonable doubt. Hence, appellee begs leave to submit this case for decision without appellee's brief and, in the interest of justice, recommends the acquittal of the accused." The whole issue after all before the Court is one of credibility. The trial court from its vantage point of observing and hearing the witnesses flatly refused to believe Apolinario's brass disclaimer and defendant-appellant's bare denial of any participation in the theft and stated weighty reasons therefor in its decision hereinabove quoted. Its findings of fact and conclusions on the lack of credibility of the witnesses are entitled to great respect and weight and will not be disturbed on appeal, defendant-appellant having failed to establish any of the recognized grounds for it to do so. On June 4 this year, defendant-appellant filed a manifestation with prayer for the withdrawal of his appeal even if it is "certainly against my conscience and against all assigned errors of fact and law in my appeal," citing, among other things, the attack on April 22, 1977 against him by elements of the notorious "Sputnik" gang group where he sustained seventeen stab wounds and complaining against the conditions in the National Penitentiary, as follows: "The conditions actually prevailing in the detention quarters of this National Penitentiary in particular, are miserably far below the modest standard set for human beings who by law [are] assured to be treated as INNOCENT CITIZENS UNTIL THE CONTRARY IS PROVED so that, driven to despair and the hopelessness of their cause, we often hear of detainees who became mentally deranged contracted serious physical ailments, or took to sudden and violent suicidal acts that end up in the death both of his victims and himself." The Court, taking note of appellant's said manifestation, recalls that in several cases in the past it has called attention to the "incredible overcrowding of prison cells" that lead inevitably to the formation of wolfpacks, and confine prisoners "under circumstances that strangle all sense of decency, reduce convicts to the level of animals, and convert a prison term into prolonged torture and slow death."

107 In People vs. De los Santos, 5 then Justice J.B.L. Reyes had graphically described such conditions, as follows: "The evidence compels us to agree with the trial court that the accused-appellants are guilty beyond reasonable doubt of the crime of murder. But the members of the Court cannot in conscience concur in the death penalty imposed, because they find it impossible to ignore the contributory role played by the inhuman conditions then reigning in the penitentiary, vividly described by the trial Judge in his decision. It is evident that the incredible overcrowding of the prison cells, that taxed facilities beyond measure and the starvation allowance of ten centavos per meal for each prisoner, must have rubbed raw the nerves and dispositions of the unfortunate inmates, and predisposed them to all sorts of violence to seize from their owners the meager supplies from outside in order to eke out their miserable existence. All this led inevitably to the formation of gangs that preyed like wolf packs on the weak, and ultimately to pitiless gang rivalry for the control of the prisoners, abetted by the inability of the outnumbered guards to enforce discipline, and which culminated in violent riots. The government cannot evade responsibility for keeping prisoners under such subhuman and dantesque conditions. Society must not close its eyes to the fact that if it has the right to exclude from its midst those who attack it, it has no right at all to confine them under circumstances that strangle all sense of decency, reduce convicts to the level of animals, and convert a prison term into prolonged torture and slow death." In People vs. Simeon, 6 in setting aside the death penalty imposed by the trial court on an improvement guilty plea and remanding the case to the lower court for further proceedings in conformity with law, Mr. Justice Felix V. Makasiar, speaking for the Court, again decried how the miserable conditions in prison have reduced the inmates into animal packs, as follows: ". . . If the counsels de oficio in this case were given such a reasonable period of time and opportunity to go to the New Bilibid Prisons, where the crime was allegedly committed, they would have acquainted themselves with the oppressive as well as explosive condition in a brigade where the ten accused herein were packed along with hundreds of convicts lying on the concrete floor because of lack of beds and lack of space. The New Bilibid Prisons is so jampacked with about 10,000 prisoners built as it was for only 2,000. Medium and maximum security prisoners have no separate cells and are mixed with the minimum security convicts. The ten defendants were serving merely terms of imprisonment when the crime was allegedly committed. Able advocate stressed further that the counsels de oficio designated by the trial court had virtually only few minutes to advise appellants herein, more pre-occupied as they were with the cases of their paying clients for which they were in court, that day of the arraignment of the accused. He further recalled that the crowded brigades or cells had been the cause of riots among the prisoners, who have been reduced into animal packs by the miserable conditions in prison, resulting in the death of many convicts." The Court, however, could not give due course to appellant's proposed withdrawal of his appeal because such withdrawal, if given due course, would mean that the erroneously excessive penalty of reclusion perpetua imposed by the lower court would be allowed to stand. Defendant-appellant is entitled to the Court's judgment imposing the appropriate penalty, as hereinafter stated. cdrep While the trial court correctly stated that under Article 310 of the Revised Penal Code, the crime committed was qualified theft (of a motor vehicle) and the imposable penalty of prision mayor in its minimum and medium periods has to

108 be raised by two degrees, it imposed an erroneously excessive penalty in two particulars: 1. The penalty higher by two degrees would be reclusion temporal in its medium and maximum periods, not reclusion perpetua; and 2. The indeterminate sentence law should be applied. ACCORDINGLY, the appealed judgment finding defendant-appellant Leonardo Dahil guilty of qualified theft is hereby affirmed with the modification that in accordance with the indeterminate sentence law and there being no mitigating nor aggravating circumstances, the sentence imposed upon him should be an imprisonment of ten (10) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum. Should the defendant-appellant have already served the minimum sentence herein imposed, it is recommended that he be granted immediate parole by the Board of Pardons and Parole, if qualified therefor; and considering further the ordeal that he has undergone during his confinement at the National Penitentiary, it is further recommended that he be granted Executive Clemency. Let copies hereof be furnished the Office of the President of the Philippines and the Board of Pardons and Parole. SO ORDERED.

[Adm. Matter No. 1553 CFI. September 12, 1980.] (RE. PENALTY IMPOSED BY JUDGE TEOFILO GUADIZ, JR., CFI, BRANCH V, NUEVA ECIJA, IN CRIMINAL CASE NO. 604, ENTITLED, "PEOPLE OF THE PHILIPPINES, vs. FROILAN MAGLAYA".) DECISION On March 4, 1977, the Court required Judge Teofilo Guadiz, Jr., CFI of Nueva Ecija to explain why he should not be held administratively liable for incompetence and/or ignorance of the law for not specifying the minimum and maximum periods of the imprisonment meted out by him in Criminal Case No. 604 under the Indeterminate Sentence Law. In compliance therewith, respondent judge submitted the following explanation: (1) Since accused former Judge Froilan Maglaya has been charged and convicted for violation of Sec. 2 of Pres. Decree No. 583 which is not an offense penalized by the Revised Penal Code or its amendments, it is obvious that the last portion of Sec. 1 of the indeterminate Sentence Law is applicable which provides that if the offense is punished by any other law, the Court shall sentence the accused to an indeterminate sentence, the maximum of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (2) The penalty imposed is the whole penalty of prision mayor the minimum of which is 6 years and one day and the maximum of which is 12 years. (3) There is substantial compliance with the last portion of Sec. 1 of the Indeterminate Sentence Law, when the penalty is prision mayor, it being understood that the minimum thereof is not less than six (6) years and one (1) day, and the maximum, not more than 12 years. The court finds the explanation not satisfactory. The provision of the Indeterminate Sentence Law is very explicit in its applicability even as to offenses

109 punished by special laws not by the Revised Penal Code. Presidential Decree No. 583 is such special penal statute. The need for specifying the minimum and maximum periods of the indeterminate sentence is to prevent the unnecessary and excessive deprivation of liberty and economic usefulness of the accused, since he may be exempted from serving the entire sentence, depending upon his behavior and his physical, mental and moral record. The requirement of imposing an indeterminate sentence in all criminal offenses, whether punished by the Revised Penal Code or by special laws, with definite minimum and maximum terms, as the Court deems proper within the legal range of the penalty specified by the law must, therefore, be deemed mandatory. Compliance with this requirement should have appeared to respondent judge particularly clear and easy in the case in question, where the penalty is given in the same term as those prescribed for offenses punished under the Revised Penal Code, that of prision mayor, which, like all the other penalties prescribed in said Code, except the indivisible penalties, have minimum and maximum periods for easy determination of the indeterminate sentence to be imposed, in terms of specific number of years, months and days both in its minimum and maximum periods. WHEREFORE, respondent Judge Guadiz is hereby ADMONISHED that a repetition of similar acts in the future will be dealt with more severely by the Court. Let a copy of this resolution be attached to the personal record of Judge Guadiz. SO ORDERED.

[Adm. Matter No. OCA-112. December 19, 1980.] IN RE JUDGE JOSE G. PAULIN of Branch III of the Court of First Instance of Surigao del Norte. SYNOPSIS The Deputy Court Administrator called the Court's attention to the decision of Honorable Judge Jose C. Paulin of the Court of First Instance of Surigao del Norte, imposing the penalty of three (3) months and twenty-eight (28) days as minimum to six (6) months as maximum, instead of four months and one day to one year, to Primitivo Betona, convicted of serious physical injuries punishable under article 263 (4) of the Revised Penal Code by arresto mayor maximum to prision correccional minimum with a range of four months and one day to two years and four months. The Supreme Court finding Judge Paulin's knowledge of the duration and graduation of penalties and the application of the Indeterminate Sentence Law deficient, censured or reprimanded him. SYLLABUS 1. CRIMINAL LAW; APPLICATION OF PENALTIES; DURATION AND EFFECT; INDETERMINATE SENTENCE LAW; WHEN NOT APPLICABLE. The crime of serious physical injuries is punishable under Art. 263 (4) of the Revised Penal Code with the penalty of arresto mayor maximum to prision correccional minimum with a range of four months and one day to two years and four months which is divisible into three periods: minimum period four months and one day to one year; medium period one year and one day to one year and eight months, and maximum period one year, eight months and one day to two years and four months. Where there is one mitigating circumstances, the imposable penalty should be taken from the minimum period whose duration is

110 four months and one day to one year. The penalty cannot be indeterminate because the Indeterminate Sentence Law does not apply to convicts whose maximum term of imprisonment does not exceed one year. A single or straight penalty has to be imposed. 2. CONSTITUTIONAL LAW; SUPREME COURT; SUPERVISION OVER LOWER COURTS; RESPONDENT JUDGE REPRIMANDED OR CENSURED FOR DEFICIENT KNOWLEDGE OF DURATION OF PENALTIES AND APPLICATION OF INDETERMINATE SENTENCE LAW; CASE AT BAR. Where respondent judge appreciating in favor of the accused the mitigating circumstance of plea of guilty and there being no aggravating circumstances, imposed upon him the penalty of three (3) months and twenty eight (28) days as minimum to six (6) months as maximum in Criminal Case No. 380 for serious physical injuries which is punishable under article 263(4) of the Revised Penal Code by arresto mayor maximum to prision correccional minimum with a range of four months and one day to two years and four months; where in his explanation as to why he imposed that sentence, respondent judge erroneously stated that the penalty provided by article 263(4) is arresto mayor to prision correccional minimum with a range of "six month as minimum to two years and four months as maximum; where he also erred in stating in the last paragraph of his endorsement that the penalty next lower to arresto mayor maximum to prision correccional minimum is "arresto mayor medium and maximum" and where he in his discretion imposed a penalty of six months, which then should be the only imposable penalty but the next lower penalty is not applicable to the case he decided because no indeterminate penalty is called for, respondent judge is censured or reprimanded for his unawareness of or unfamiliarity with, the application of the Indeterminate Sentence Law and the duration and graduation of penalties.

[Adm. Matter No. 604-CFI. February 20, 1981.] TEOFILO A. HUMILDE, Assistant City Fiscal of Dagupan City; RODOLFO R. AQUINO, Assistant Provincial Fiscal of Pangasinan, and SANTOS B. ARREOLA, Practicing Lawyer, complainants, vs. JUDGE MAGNO B. PABLO of the Court of First Instance of Pangasinan, Alaminos, Branch XIII, respondent. SYNOPSIS Respondent judge of the Court of First Instance was administratively charged for having sentenced an accused to suffer subsidiary imprisonment in a case where the principal penalty imposable was higher than prision correccional, contrary to the provision of Article 39(3) of the Revised Penal Code; and in still another case, for having imposed an indeterminate sentence upon the accused, whose maximum term of prison did not exceed one year, which is not sanctioned by section 2 of the Indeterminate Sentence Law as amended. The Supreme Court held that respondent judge's plea that those mistakes were committed in good faith does not exculpate him for his failure to familiarize himself with some elementary rules in the imposition of penalties. He was severely censured or reprimanded for those errors and ordered to pay a fine equivalent to his salary for one month. SYLLABUS 1. CRIMINAL LAW; PENALTY SUBSIDIARY IMPRISONMENT; WHEN IMPOSABLE. Article 39(3) of the Revised Penal Code provides that "when the principal penalty is higher than prision correccional no subsidiary

111 imprisonment shall be imposed upon the culprit." Moreover, Republic Act No. 5465, which amended article 39 and which took effect on April 21, 1969, requires subsidiary imprisonment only for non-payment of the fine and not for the civil liability. 2. ID.; ID.; INDETERMINATE SENTENCE LAW; WHEN APPLICABLE. Section 2 of the Indeterminate Sentence Law, Act No. 41003, as amended, provides that the law does not apply "to those whose maximum term of prision does not exceed one year." Thus, the indeterminate sentence of two months and one day as minimum to four months of arresto mayor as maximum imposed by respondent judge in the case at bar to an accused is not sanctioned by law. 3. CONSTITUTIONAL LAW; ADMINISTRATIVE SUPERVISION OF COURTS; ADMINISTRATIVE COMPLAINT; GOOD FAITH DOES NOT EXCULPATE RESPONDENT FOR MISTAKES IN APPLICATION OF ELEMENTARY RULES IN IMPOSITION OF PENALTIES. The plea of the respondent that his mistakes in the imposition of penalties were committed in good faith does not exculpate him for his failure to familiarize himself with some elementary rules in the imposition of penalties. 4. ID.; ID.; ID.; ID.; PENALTY IMPOSABLE. For failure to familiarize himself with some elementary rules in the imposition of penalties, a judge of Court of First Instance is severely censured or reprimanded and ordered to pay a fine equivalent to his salary for one month. Furthermore, he is warned that a more drastic disciplinary action would be taken against him for similar irregularities.

[G.R. No. L-53470. June 26, 1981.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PONCIANO ROQUE, accused-appellant. SYNOPSIS Appellant, a married man, succeeded in having carnal knowledge of the twelveyear old victim by force and against her will. Charged with rape, the appellant was found guilty and was sentenced in an amended decision to an indeterminate sentence ranging from twelve years and one day of reclusion temporal to reclusion perpetua, based on the testimony of the victim and the findings of the medico legal officer of the Constabulary crime laboratory who examined her four days after the incident. Pointing to number of inconsistencies in the testimony of the victim, appellant appealed to the Supreme Court. In a subsequent manifestation, however, appellant withdrew his appeal, but the Supreme Court denied its withdrawal since only its resolution could correct the obviously erroneous penalty imposed by the trial court. On the merits, the Supreme Court held that the discrepancies in the testimony of the victim, which were adequately answered in the Solicitor General's brief and which were inevitable considering the victim's immaturity, inexperience and low educational attainment, are not sufficient to cast a reasonable doubt on the guilt of the accused. Judgment affirmed but the penalty was modified to reclusion perpetua, an indivisible penalty which is not covered by the indeterminate sentence law and which is the penalty provided for simple rape under Article 335 of the Revised Penal Code.

112 SYLLABUS 1. REMEDIAL LAW; CREDIBILITY OF WITNESS; INCONSISTENCIES IN TESTIMONY OF TWELVE-YEAR OLD RAPE VICTIM MADE MORE THAN EIGHTEEN MONTHS AFTER INCIDENT NOT SUFFICIENT TO CAST REASONABLE DOUBT ON GUILT OF ACCUSED. Where the testimony of the twelve-year old rape victim was given more than eighteen months after the incident, and she was rigorously grilled in the course of an intensive and lengthy cross-examination in three sessions, it was inevitable that there would be discrepancies in her testimony, especially considering her immaturity, inexperience and low educational attainment. Those discrepancies are not sufficient to cast reasonable doubt on the guilt of the accused. 2. CRIMINAL LAW: SIMPLE RAPE; IMPOSABLE INDIVISIBLE PENALTY OF RECLUSION PERPETUA NOT COVERED BY INDETERMINATE SENTENCE LAW. The penalty of reclusion perpetua is the penalty under article 335 of the Revised Penal Code, as amended, for simple rape, the crime committed in this case. The trial court thus erred in imposing the indeterminate sentence of twelve years and one day of reclusion temporal to reclusion perpetua, because the indeterminate sentence covers only divisible penalties and does not include an indivisible penalty.

[Adm. Matter No. 2380-CFI. July 31, 1981.] ROMULADO BAYLEN, complainant, vs. HON. SANCHO INSERTO, Judge of the Court of First Instance of Iloilo, Branch I, Iloilo City, respondent. SYNOPSIS Complainant charged respondent judge with ignorance of the law for imposing on him a penalty which requires the service of subsidiary imprisonment in case of non-payment of the indemnity to the aggrieved party, and which does not fix the "maximum" and "minimum" terms, in violation of Article 39, as amended, of the Revised Penal Code and the Indeterminate Sentence Law, respectively. Respondent admitted his errors which he claimed he wanted to correct were it not for the perfection of an appeal. It appears, though, that respondent judge, in the earlier case of Ajeno vs. Inserto (71 SCRA 166), had already been admonished by the Court for not knowing that subsidiary imprisonment is now imposed only in case of fine. The Supreme Court held that respondent judge's ignorance of the law had been demonstrated more glaringly by his failure to apply the Indeterminate Sentence Law, in addition to mis-applying Article 39, as amended, of the Revised Penal Code. He was sentenced to pay a fine equivalent to his actual salary for two (2) months. SYLLABUS 1. CRIMINAL LAW; PENALTY; IMPOSITION OF SUBSIDIARY IMPRISONMENT ONLY IN CASE OF NON-PAYMENT OF FINE; CASE AT BAR. Non-payment of the indemnity can not subject the accused to subsidiary indorsement because under the amendment introduced to Article 39 of the Revised Penal Code by Republic Act No. 5465, it is only for non-payment of the fine that the accused may be required to serve subsidiary imprisonment. In the present case, therefore, respondent judge violated said law by imposing upon complainant the subsidiary imprisonment of one hundred and forty-one (141) days in case of his insolvency to pay the indemnity of P1,135.00 to the offended party in the criminal case filed against him.

113

2. ID.; ID.; INDETERMINATE SENTENCE LAW; NEED FOR DETERMINING "MAXIMUM" AND "MINIMUM" PERIODS OF SENTENCE MANDATORY; CASE AT BAR. "The need for specifying the minimum and maximum periods of the indeterminate sentence is to prevent the unnecessary and excessive deprivation of liberty and economic usefulness of the accused, since he may be exempted from serving the entire sentence, depending upon his behavior and his physical, mental and moral record. The requirement of imposing an indeterminate sentence in all criminal offenses, whether punished by the Revised Penal Code or by special laws, with definite minimum and maximum terms, as the Court deems proper within the legal range of the penalty specified by the law must, therefore, be deemed mandatory (People vs. Maglaya, September 12, 1980)." In the case at bar, respondent imposed a penalty without determining two (2) penalties, referred to in the Indeterminate Sentence Law as the "maximum" and "minimum" terms. Except the indivisible penalties, all the other penalties prescribed in the Revised Penal Code, have minimum and maximum periods for easy determination of the indeterminate sentence to be imposed, in terms of specific number of years, months and days both in its minimum and maximum periods. 3. CONSTITUTIONAL LAW; ADMINISTRATIVE SUPERVISION OF COURTS; SERVICE IN THE JUDICIARY MEANS CONTINUOUS STUDY AND RESEARCH ON LAW. "When respondent accepted his position he owed it to the dignity of the court, to the legal profession and to the public, to know the very law he is supposed to apply in a given controversy. Even in the remaining years of his stay in the judiciary he should keep abreast with the changes in the law and with the latest decisions and precedents. Although a judge is nearing retirement he should not relax in his study of law and court decisions. Service in the judiciary means a continuous study and research on the law from beginning to end (Ajeno vs. Inserto, supra)." 4. ID.; ID.; ADMINISTRATIVE COMPLAINT AGAINST A JUDGE; IGNORANCE OF THE LAW; PENALTY.- A judge, who had been admonished in an earlier case for imposing open the accused subsidiary imprisonment for nonpayment of indemnity to the offended party and had been warned that a repetition of the same will be severely dealt with, and who, not only repeated the same error, but demonstrated more glaringly his ignorance of the law by failing to apply the Indeterminate Sentence Law, was fined in an amount equivalent to his actual salary for two (2) months with a stern warning that a repetition of the same or similar offense or shortcoming will be punished with extreme severity.

[G.R. No. L-58637. November 16, 1981.] DELMAR VENERANDA y ALIMANGGO and SERGIO BORJA y ABAD, petitioners, vs. PEOPLE OF THE PHILIPPINES, respondent. SYNOPSIS Appellants, after a plea of guilty, were convicted of the crime of qualified theft which is penalized with prision mayor. Applying the Indeterminate Sentence Law, the trial court sentenced appellant Borja to imprisonment of 4 years, 9 months and 11 days of prision correccional as minimum, to 8 years of prision mayor, as maximum, after considering in his favor his plea of guilty; and appellant Veneranda to imprisonment of 6 years, 8 mouths and 1 day, as minimum, to 10 years of prision mayor, as maximum, after offsetting the aggravating

114 circumstance of recidivism by his plea of guilty. On appeal, appellants assailed the correctness of the penalties imposed. The Supreme Court held, that in the application of the Indeterminate Sentence Law, the court has the discretion to impose a penalty within the range prescribed by law; that the penalty prescribed for qualified theft being prision mayor, the penalty imposed upon Borja after considering the mitigating circumstance of plea of guilty and applying the Indeterminate Sentence Law is within the range of prision correccional and the maximum of 8 years of prision mayor; but that the minimum of the penalty imposed upon veneranda after offsetting the aggravating circumstance of recidivism with the mitigating circumstance of plea of guilty is beyond the minimum of prision correccional. Judgment against Borja affirmed; that against Veneranda modified by reducing the minimum of the indeterminate sentence imposed. SYLLABUS 1. REMEDIAL LAW; JURISDICTION OF COURTS; SUPREME COURT HAS EXCLUSIVE JURISDICTION OVER APPEALS INVOLVING QUESTIONS OF LAW. That portion of Section 45 of the Judiciary Act of 1948 as amended by Republic Acts 2613 and 6031 to the effect that "in cases falling under the concurrent jurisdictions of the municipal and city courts with the courts of first instance, the appeal shall be made directly to the Court of Appeals whose decision shall be final" must be construed, in relation to Section 17, No. 2(4) of the same Judiciary Act regarding the exclusive jurisdiction of the Supreme Court over appeals in all other cases in which only errors or questions of law are involved," to mean that the appeal would be direct to the Court of Appeals only if there are issues of fact, but, where, as in this case, the only question raised being only as to the propriety of the penalty, is a legal one, this Court has exclusive jurisdiction over such appeal. 2. CRIMINAL LAW; QUALIFIED THEFT; PENALTY IN CASE AT BAR. Anent the accused appellant Veneranda, whose plea of guilty is offset by the aggravating circumstance of recidivism, the penalty imposable for the crime of qualified theft being prision mayor and the next lower is prision correccional which has a range of 6 months and 1 day to 6 years, the minimum of the penalty imposed by the trial court which is 6 years, 8 months and 1 day is beyond the range of prision correccional. Thus, the lower court erred in fixing the minimum of the Indeterminate Sentence imposed on Veneranda.

[G.R. No. L-38449. November 25, 1982.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINADOR MANZANO, defendant-appellant. SYNOPSIS Accusing defendant-appellant of having raped her, complainant, an 18-year old barrio maiden, testified in court that on her way home from an errand for her mother, she was followed by appellant and waylaid to a hill about 40 meters away from the road; that once there appellant threatened to kill her if she made an outcry and thereafter forced himself on her; and that after the sexual assault, complainant went home crying with dishevelled hair, crumpled dress and ripped panty. The defense claimed that the alleged sexual intercourse was consented to by the offended party, appellant and complainant having been former sweethearts

115 before appellant got married to his present wife. Appellant claimed that the charge of rape was an act of vengeance or retaliation sought by complainant's parents against him because he married another girl and not their daughter. The trial court refused to give credence to the version of the defense, and accordingly rendered a decision convicting accused-appellant of rape attended by the aggravating circumstances of uninhabited place and nighttime, sentencing him to an indeterminate penalty plus moral and exemplary damages. The case was certified by the Court of Appeals to this Court since the penalty prescribed for rape is reclusion perpetua and not as erroneously imposed by the trial court. Appellant, in his attempt to bolster his contention that there was consented intercourse, harped on the absence of force or violence inflicted upon the offended party. On review, the Supreme Court held that: (a) the findings of the trial court at to credibility of the complainant commands the highest respect from this Tribunal; (b) the absence of any superficial abrasion or contusion on the person of the offended party does not militate against the claim of the latter whose clear and candid testimony bears the badges of truth, honesty and candor; (c) the claim of appellant that the rape charge was a retaliatory measure was unsubstantiated; (d) the appreciation of the aggravating circumstance of nighttime by the trial court is erroneous because there is nothing in the record which would indicate that the crime of rape was committed at night; (e) the trial court correctly considered the aggravating circumstance of uninhabited place since the evidence is clear that the place where assailant brought the offended party for the fulfillment of the heinous act was about 40 meters away from the road; (f) the award of moral and exemplary damages is legally justifiable; and (8)the correct penalty for rape is reclusion perpetua. Assailed decision modified. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESS; CONVICTION OR ACQUITTAL IN CRIMES AGAINST CHASTITY DEPENDS ON CREDIBILITY OF COMPLAINANT'S TESTIMONY. It is a rule well-settled that in crimes against chastity, conviction or acquittal depends almost entirely on the credibility of complainant's testimony since by the intrinsic nature of those crimes they usually involve only two personsthe complainant and the accused. (People vs. Bordaje, 99 SCRA 388; see also People vs. Quiazon, 78 SCRA 513; People vs. Ilagan, 64 SCRA 170.) 2. ID.; ID.; ID.; FINDINGS OF FACT OF TRIAL COURT AS TO CREDIBILITY OF WITNESSES GENERALLY RESPECTED ON APPEAL. The findings of the trial court as to credibility commands the highest respect from the Supreme Court. "The principle invariably followed by this Tribunal that on the question of credence to which the conflicting versions of prosecution and defense are entitled, the answer given by the trial court is generally viewed as correct and thus entitled so the highest respect.'' (People vs. Villamada, 78 SCRA 145.) 3. ID.; ID.; ID.; APPELLANT'S CLAIM OF MUTUAL LUST, HELD INCREDIBLE IN CASE AT BAR. It is unbelievable that appellant and the offended party were actually lovers, who, by their passion were lured to climb uphill and there consummate their carnal relation. In the first place, appellant's claim that he was engaged with the offended party was not substantiated, either by testimonial or circumstantial evidence. Secondly, if Jovita consented to having the sexual intercourse with appellant because they have been, before his (appellant) marriage, and continued to be, sweethearts, she (Jovita) would have kept the act a secret instead of revealing it to her mother. Thirdly, it is highly improbable for a

116 young girl, who is merely 18 years old, of good refute, shy and innocent, to allow herself or continue to be the girlfriend of a married man. Lastly, if it was true that Jovita was the girlfriend of the appellant and had assented to the sexual intercourse, there is no plausible reason why she should go home crying, with dishevelled hair, crumpled dress and ripped panty. 4. ID.; ID.; ID.; ABSENCE OF SUPERFICIAL INJURIES DOES NOT AFFECT COMPLAINANT'S CREDIBILITY. The absence of any superficial abrasion or contusion on the person of the offended party does not militate against the claim of the latter whose clear and can did testimony bears the badges of truth, honesty and candor. (People vs. Gan, 46 SCRA 667.) Besides, the absence or presence of visible signs of injury on the victim depends on the degree of force employed by the accused to consummate the purpose which he had in mind to have carnal knowledge with the offended woman. It is an accepted rule that the force employed in rape need not be so great nor of such a character as could not be resisted. It is only that the force used by the accused is sufficient to enable him to consummate his purpose. (People vs. Gan, supra, citing U.S. vs. Villarosa, 4 Phil. 434; People vs. Momo, 56 Phil. 86; People vs. Rivers, 93 Phil. 137.) 5. ID.; ID.; ID.; AN OFFER OF COMPROMISE BY THE ACCUSED MAY BE RECEIVED IN EVIDENCE AS AN IMPLIED ADMISSION OF GUILT. It may be true that Demetrio Braganza, Mayor of Mabini, advised the mother of the accused to settle the case amicably, which was also corroborated by Councilor Zosimo Ariston, a witness for the prosecution. But the fact remains that the parents of the accused took steps in approaching the parents of the offended party for a possible compromise settlement. And under the Rules of Court, an offer of compromise may be received in evidence as an implied admission of guilt. (Rule 130, Section 24, Rules of Court.) 6. ID.; ID.; ID.; FILING OF CHARGES NOT MOTIVATED BY VENGEANCE IN CASE AT BAR. We agree with the trial court that the offended girl filed the charge of rape against the accused to vindicate her honor and reputation and that she was not motivated by malice or vengeance in doing so, in the same light that our native customs, morals and traditions which have inculcated the innate modesty, humility and purity of Filipino womanhood, the Filipina would not subject herself to public ridicule, shame and dishonor as a victim of rape if it were not true, her parents would by the same token avoid as much as possible such a scandal and infamy unless the rape was actually committed. 7. CRIMINAL LAW; RAPE; AWARD OF EXEMPLARY DAMAGES JUSTIFIED IN CASE AT BAR WHERE AN AGGRAVATING CIRCUMSTANCE IS ESTABLISHED. An award of exemplary damages is proper only when there exists one or more aggravating circumstances. There is no basis for awarding exemplary damages when not even one aggravating circumstance is established. (People vs. Ruiz, 110 SCRA 155; Perez vs. CA, 13 SCRA 445.) There being the aggravating circumstance of uninhabited place as basis for its imposition, the lower court is justified in awarding exemplary damages, by way of example or correction for the public good, in addition to moral damages, (Art. 2229, New Civil Code.) 8. ID.; AGGRAVATING CIRCUMSTANCES; NOCTURNITY; NOT PRESENT IN CASE AT BAR. It was error for the court a quo to have considered nocturnity as an. aggravating circumstance. As correctly observed by the Solicitor General in the People's Brief: "There is nothing in the record which would indicate that the crime of rape was committed at night. For, by the word 'nighttime' should be understood to mean that period of darkness beginning at the

117 end of dusk and ending at dawn. Nights are from sunset to sunrise. (p. 311. Revised Penal Code, Book I, 1967 Ed., Luis B. Reyes.) Since it is admitted by both Jovita and the defendant-appellant that the sexual intercourse occurred at 6:00 o'clock p.m., it can be said that dusk was just beginning and there was still twilight. Darkness had not completely set in, and therefore, the night had not yet began. And, even assuming arguendo, that the crime of rape was committed at night, there is no evidence on record that it was especially sought for by the defendant-appellant to insure the commission of the crime (People vs. Pardo, 79 Phil. 568)." 9. ID.; ID.; UNINHABITED PLACE; APPRECIATED IN CASE AT BAR. The trial court correctly appreciated the aggravating circumstance of uninhabited place. The evidence is clear that the place where the assailant brought the offended party for the fulfillment of the heinous act was about 40 meters away from the road. The place was full of stones and under bushes. The trail was stony all the way from the road and there were also big boulders. As described by Mayor Demetrio Braganza, the way was thick with bushes and trees and you have to climb up for it is a hill. According to the offended girl, the distance from her house to the house of Crespo Balmania was more than a kilometer and the rape took place mid-way between said house of Crespo and the house of her brother where she was then living. (See People vs. Mendoza, 100 Phil. 811 and People vs. Saquing, 30 SCRA 834.) 10. ID.; RAPE; AWARD OF MORAL DAMAGES JUSTIFIED IN CASE AT BAR. The award of moral damages to the offended party by the lower court is proper and legally justifiable because "(a)s a victim of rape. complainant undeniably felt mental anguish and distress. And having to face public trial that would expose the lurid details of her unhappy experience, that too had the effect of besmirching her reputation to warrant the award of moral damages, and inseparable liability to the punitive portion of the sentence imposed on all convicted rapists." (People vs. Bautista, 102 SCRA 483.) 11. ID.; ID.; PENALTY; RECLUSION PERPETUA; INDETERMINATE SENTENCE LAW, NOT APPLICABLE TO OFFENSES WHERE THE IMPOSABLE PENALTY IS DEATH OR LIFE IMPRISONMENT. Since the penalty prescribed for rape is reclusion perpetua (Art. 335, Revised Penal Code), the trial court erroneously imposed the indeterminate sentence. The Indeterminate Sentence Law does not apply to persons convicted of offenses punished with death penalty or life imprisonment (Sec. 2, Act No. 4103, at amended). 12. REMEDIAL LAW; APPEAL; EXCLUSIVE APPELLATE JURISDICTION OF THE SUPREME COURT OVER OFFENSES PENALIZED WITH RECLUSION PERPETUA. The Supreme Court has the exclusive jurisdiction to review, reverse, modify or affirm on appeal the decision of the trial court rendered in a case involving an offense for which the penalty to be imposed is life imprisonment. (Section 17, Judiciary Act of 1048, as amended by R.A. 3440.) Hence, this rape case which constitute a crime penalized with reclusion perpetua was certified to Us by the Court of Appeals to review the decision of the court a quo.

[G.R. No. L-60946. December 10, 1982.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GENEROSO QUINLOB and LORETO QUINLOB, accused-appellants.

118 SYNOPSIS Appellants Generoso and Loreto were charged with murder for the death of their brother, Domingo, with the Court of First Instance. Appellants pleaded not guilty, interposed the defense of alibi and claimed that they were 200 meters away in their houses asleep when the incident happened. At the trial, Carmen and Rogelio, wife and son respectively, of the victim, testified for the prosecution, Rogelio testified that appellants had resented his father when the land owned by Nenita, appellants' sister, was sold to the deceased instead of appellants' buyer which deprived them of P2,500 profit; and that earlier the day before his father was killed, appellant Generoso had asked him if he will not pity his father if they kill him. Carmen testified that she last saw her husband together with appellants and that at about 10:00 P.M. of July 4, 1975, she heard a gunshot followed by cries for help by the deceased who shouted the full name of appellants at his assailants. This statement was corroborated by Rogelio. The trial court rendered judgment finding appellants guilty as charged and sentenced them to an indeterminate sentence, On appeal, the Court of Appeals, affirmed the decision but modified the sentence to reclusion perpetua, Hence, this recourse of appellants assailing the credibility of the prosecution witnesses. The Supreme Court held that 1) the Indeterminate Sentence Law does not apply where the penalty imposed it reclusion perpetua; 2) that for alibi to prosper as a defense, the accused must not only show that he was at some other place at the time the crime was committed but also it was physically impossible for him to have been at the scene at the time of its commission; and 3) that factual findings of the lower court are generally not disturbed on appeal. Judgment of the trial court is modified as to penalty and affirmed in all other respect. Appellants sentenced to suffer reclusion perpetua. SYLLABUS 1. CRIMINAL LAW; INDETERMINATE SENTENCE LAW; DOES NOT APPLY WHERE IMPOSABLE PENALTY IS RECLUSION PERPETUA. It should be noted that under Article 248 of the Revised Penal Code the penalty for murder is reclusion temporal in its maximum period to death. Accordingly, if the penalty is to be imposed in its medium period, as Judge Buissan said, it should be reclusion perpetua. It, therefore, passes understanding why the judge imposed an indeterminate sentence considering that the Indeterminate Sentence Law does not apply if the penalty is life imprisonment. (Act No. 4103, as amended by Act No. 4225.) 2. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ALIBI; ACCUSED MUST SHOW IMPOSSIBILITY FOR HIM TO BE AT THE SCENE AT THE TIME OF ITS COMMISSION. This defense cannot be sustained. Alibi is the weakest of all defenses because it can be easily concocted. To sustain the defense of alibi, the accused must not only show that he was at some other place at the time the crime happened, but also, that it was physically impossible for him to have been at the place where the crime was committed. The distance between the house of the deceased and that of Loreto Quinlob's is only 200 meters. It was even admitted by the defense that the shouts of Carmen Quinlob for help could be heard in Loreto's house. In fact, appellants allege that after hearing the shout of Carmen Quinlob, Lolita Quinlob roused her husband Loreto and the couple in turn informed Generoso and Jose Lumatap and they all proceeded to Domingo's house to verify the matter. The scene of the crime therefore is very near the house of Loreto Quinlob where the appellants were said to be sleeping.

119 3. ID.; ID.; PART OF THE RES GESTAE, AN EXCEPTION TO THE HEARSAY RULE: CASE AT BAR. It is evident that the admissibility of the cry for help and the naming of his assailants by the deceased as part of the res gestae is not put in issue. Indeed, appellants cannot do so because a victim's revelation to a witness of the identity of the assailants immediately after receiving the wounds, is part of the res gestae. (People vs. Miranda, L-18508, February 29, 1964, 10 SCRA 385.) And res gestae is an exception to the hearsay rule. 4. ID.; ID.; FACTUAL FINDINGS OF THE TRIAL COURT, NOT DISTURBED ON APPEAL. An appellate court, except in a well defined exception, will not disturb the factual findings of the trial court which was in an advantageous position to do so because it had the opportunity to hear the witnesses and to observe their demeanor. The instant case does not fall within the exception because there is nothing in the record to indicate that the trial court overlooked or misinterpreted a fact or circumstance of weight and influence which would justify disturbing its findings. 5. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; CIRCUMSTANCES SHOWING PRESENCE THEREOF IN CASE AT BAR. The location, character, gravity and number of the wounds inflicted on the deceased, the number of his assailants, and the commission of the crime in the darkness of the evening indicate treachery. Thus the killing was properly denominated as murder. 6. ID.; ID.; EVIDENT PREMEDITATION; NOT ATTENDANT IN CASE AT BAR. However, We find no evidence of evident premeditation. For there is no showing that appellants had planned the killing and pursued the same to its completion after a sufficient interval. 7. ID.; AGGRAVATING CIRCUMSTANCE; RELATIONSHIP; PRESENT IN CASE AT BAR. The victim was killed by his own brothers. It passes understanding why this significant fact has been overlooked by the fiscal, the trial court, the Solicitor General and the Court of Appeals. Relationship in the instant case is a generic aggravating circumstance. 8. ID.; MURDER; PENALTY; CASE AT BAR. The result is that appellants are guilty of murder qualified by treachery with the aggravating circumstance of relationship and with no mitigating circumstance. Accordingly, the appropriate penalty is death but in view of the lack of necessary votes to impose it, We have to impose the penalty of reclusion perpetua.

[G.R. No. L-62607. December 15, 1982.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINGO CASTUERA, defendant-appellant. SYNOPSIS Appellant, after surrendering to the authorities, pleaded guilty to the crime of homicide for the killing of Teodorico Madrigalejos and with leave of court presented two witnesses to establish the extenuating circumstance that sufficient provocation on the part of the victim preceded the commission of the offense. The trial court sentenced him to imprisonment of 5 years of prision correccional to 8 years of prision mayor, taking into account the three (3) mitigating circumstances of sufficient provocation on the part of the deceased, voluntary surrender, and plea of guilty. In his appeal certified to the Supreme Court by the Court of

120 Appeals on a question of law, appellant assailed the penalty imposed as being excessive and contrary to law. The Supreme Court held that the presence of three mitigating circumstances may be taken into account not only in lowering the basic penalty of reclusion temporal to the next lower penalty of prision mayor but also in determining the applicable period of the latter penalty; that considering the circumstances of this case and the principle laid down in People vs. Ducosin (59 Phil. 109), the maximum penalty imposed should be reduced to 7 years of prision mayor. and the minimum, which shall not be less than the minimum imprisonment period of the penalty next lower to prision mayor. should be reduced to 2 years of prision correccional. Judgment modified. SYLLABUS 1. CRIMINAL LAW; HOMICIDE; PENALTY; PRESENCE OF THREE MITIGATING CIRCUMSTANCES CALLS FOR APPLICATION OF ARTICLE 64, REVISED PENAL CODE; CASE AT BAR. The penalty prescribed by law for the crime of homicide is reclusion temporal; the duration of which is from twelve (12) years and one (1) day to twenty (20) years (Article 27, par. 7, Revised Penal Code). It is a divisible penalty consisting of three periods. In the case at bar, however, the concurrence of three mitigating circumstances not offset by any aggravating circumstance calls for an application of Article 64, Rule 5, of the Revised Penal Code. Pursuant to said Rule 5, under these circumstances, "the court shall impose the penalty next lower to that prescribed by law, in the period it may deem applicable. according to the number and nature of such circumstances." 2. ID.; ID.; ID.; ID.; NUMBER AND NATURE OF CIRCUMSTANCES DETERMINE THE APPLICABLE PERIOD OF NEXT LOWER PENALTY AS MAXIMUM. According to the last clause of said Rule 5, the period of the next lower penalty should be applied "according to the number and nature of such circumstances" which undoubtedly refers to the same mitigating circumstances. Considering that the nature, independently of the number, of the mitigating circumstances of voluntary surrender and plea of guilty not only manifests the appellant's desire to acknowledge his guilt with evident remorse or to save the government the trouble and expense necessarily incurred in search and capture (People vs. Gervacio, 24 SCRA 960). but evinces as well his predisposition to reformation and rehabilitation, and keeping in mind that appellant would not have committed the offense had the victim not given sufficient provocation immediately before the commission thereof, the maximum term of the indeterminate sentence of 8 years imposed by the lower court should be reduced to 7 years which is within the minimum period of prision mayor. 3. ID.; ID.; ID.; ID.; LIMITATION IN FIXING OF MINIMUM PERIOD. In People vs. Ducosin, 59 Phil. 109, the very first case decided by this Court involving the application of the Indeterminate Sentence Law, it was held that "the Indeterminate Sentence Law, Act No. 1403, simply provides that the 'minimum' shall not be less than the minimum imprisonment period of the penalty next lower," Otherwise stated, the Court has the discretion to fix the minimum imprisonment anywhere within the range of the next lower penalty without reference to the degrees into which it may be subdivided. Since the minimum of the indeterminate sentence imposed by the lower court, five years in the case at bar is within the range of prision correccional, the same conforms to the provisions of the Revised Penal Code and of Section 1 of the Indeterminate Sentence Law.

121 4. ID.; ID.; ID.; ID.; COURT'S DISCRETION IN FIXING THE MINIMUM PERIOD OF IMPRISONMENT. In Ducosin case, this Court laid down the factors and circumstances that should guide the discretion of the court in fixing the term of the minimum period of imprisonment. As this Court said in that case, "keeping in mind the basic purpose of the Indeterminate Sentence Law 'to uplift and redeem valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness' . . . it is necessary to consider the criminal, first, as an individual and, second, as a member of society. This opens up an almost limitless field of investigation and study which it is the duty of the court to explore in each case as far as is humanly possible, with the end in view that penalties shall not be standardized but fitted as far as is possible to the individual, with due regard to the imperative necessity of protecting the social order."

[G.R. No. L-56441. July 25, 1983.] CLEMENCIO C. RAMIREZ, petitioner, vs. HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. SYLLABUS 1. CRIMINAL LAW; INDETERMINATE SENTENCE LAW; PENALTY; PENALTY LOWERED DUE TO PRESENCE OF MITIGATING CIRCUMSTANCES. The penalty for the offense is reclusion temporal maximum to reclusion perpetua. That penalty should be lowered by one degree because of the presence of two mitigating circumstances: plea of guilty and voluntary surrender to the authorities. So, the maximum of the indeterminate penalty should he taken from prision mayor maximum to reclusion temporal medium, or ten years and one day to seventeen years and four months (Par. 5, Art. 64, Revised Penal Code). And the minimum penalty should be taken from prision correccional maximum to prision mayor medium, or four years, two months and one day to ten years. 2. ID.; ID.; ID.; REDUCTION OF PENALTY WITHIN LIMITS ALLOWED BY LAW. The Supreme Court held that he may be given as minimum penalty four (4) years, two (2) months and one (1) day of prision correccional maximum. That is allowed by law. But the maximum penalty cannot be reduced to six years. That is not authorized by law. DECISION This is a plea of the accused for the reduction of his penalty for the malversation of P68,057.97. Clemencio C. Ramirez, a collection agent of the Bureau of Internal Revenue at Bauang, La Union, was convicted by the Sandiganbayan in a decision dated February 23, 1981 for having malversed P68,057.97. He had pleaded guilty. The penalty for the offense is reclusion temporal maximum to reclusion perpetua (Par. 4, Art. 217 of the Revised Penal Code as amended by Republic Act No. 1060). That penalty should be lowered by one degree because of the presence of two mitigating circumstances: plea of guilty and voluntary surrender to the authorities. So, the maximum of the indeterminate penalty should be taken from prision mayor maximum to reclusion temporal medium, or ten years and one day to seventeen years and four months (Par. 5, Art. 64, Revised Penal Code).

122 And the minimum penalty should be taken from prision correccional maximum to prision mayor medium, or four years, two months and one day to ten years. cdrep Ramirez was sentenced to an indeterminate penalty of five (5) years, five (5) months and eleven (11) days of prision correccional, as minimum, to twelve (12) years and one day of reclusion temporal, as maximum, and to pay a fine of P68,057.97 and a similar indemnity with the additional penalty of perpetual special disqualification. Section 1 of the Indeterminate Sentence Law provides that "the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." The Sandiganbayan took the maximum of the indeterminate penalty from reclusion temporal minimum, or from the medium period, on the theory that, since the two extenuating circumstances were already taken into account in lowering the penalty by one degree, they should not again be taken into account in determining the maximum of the penalty. It applied the provision of rule 1 of article 64 that "when there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period." Using its discretion, the Sandiganbayan took the minimum of the indeterminate penalty from the minimum period of the penalty next lower in degree, or from prision correccional maximum. The accused in his motions for reconsideration in the Sandiganbayan and in this Court insists that, out of compassion to a first offender and to a lawyer, he should be sentenced to an indeterminate penalty of four years, two months and one day to six years (pp. 13 and 31, Rollo). However, in this petition for review he prays that he be sentenced to four years, two months and one day to ten years and one day. We hold that he may be given as minimum penalty four (4) years, two (2) months and one (1) day of prision correccional maximum. That is allowed by law. But the maximum penalty cannot be reduced to sir years. That is not authorized by law. As prayed in his basic petition, the maximum of his penalty may be ten (10) years and one (1) day of prision mayor maximum. This matter rests in the discretion of the court according to paragraph 5 of article 64 itself. (People vs. Oraza, 83 Phil. 633.) Parenthetically, it should be noted that the extensions sought by the accused from September 13, 1981 to August 5, 1983 constitute an abuse of the legal process. His last extension, which will serve no purpose, is denied. cdll WHEREFORE, the judgment of the Sandiganbayan is affirmed with the modification that the accused is sentenced to an indeterminate penalty of four years, two months and one day of prision correccional as minimum to ten years and one day of prision mayor as maximum. No costs. SO ORDERED.

123 [G.R. No. L-66859. September 12, 1984.] PEOPLE OF THE PHILIPPINES, petitioner, vs. JUDGE GERMAN G. LEE, JR., Branch 35, Regional Trial Court of Negros Oriental, and ROMAN AMIL, respondents. DECISION This case is about the correctness of the sentence rendered by Judge German G. Lee, Jr., who imposed on Roman Amil, 57, a straight penalty of six years and one day of prision mayor for homicide. He applied the rule in People vs. Nang Kay, 88 Phil. 515, involving a conviction for illegal possession of firearms which is punished by imprisonment for not less than five years and not more than ten years. Nang Kay was sentenced to five years and one day since an indeterminate sentence would be unfavorable to him. It would lengthen his prison sentence. But the instant case is not a prosecution under a special law. It is a homicide case. The application of the Indeterminate Sentence Law is mandatory if the imprisonment would exceed one year. It would be favorable to the accused (People vs. Alvarez, 101 Phil. 516). Fiscal Servilliano Elvinia, Jr. objected to the straight penalty. Judge Lee found that the homicide was attended by the two generic mitigating circumstances provocation and voluntary surrender to the authorities. There was no aggravating circumstance. Hence, the penalty of reclusion temporal must be lowered by one degree or to prision mayor. The maximum of the indeterminate sentence should be taken from prision mayor minimum. By applying the Indeterminate Sentence Law, the penalty has to be reduced by one degree or to prision correccional from which the minimum sentence has to be taken. The certiorari resorted to by Fiscal Elvinia is proper because his purpose is to correct a manifest error of the trial court amounting to excess of jurisdiction and to favor the accused. The proceeding did not place the accused in double jeopardy. WHEREFORE, the petition is granted. The judgment of the trial court is modified. The accused is hereby sentenced to imprisonment of three (3) years of prision correccional medium as minimum to seven (7) years of prision mayor as maximum. No costs. SO ORDERED. [G.R. No. L-61126. January 31, 1985.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MELECIO ASTURIAS, defendant-appellant. SYLLABUS 1. CRIMINAL LAW; RAPE; MENTAL RETARDATE CANNOT LEGALLY GIVE CONSENT TO A SEXUAL ACT. The issue in the case of Vilma Ortega that a mentally retarded woman could not have given valid and legal consent to the sexual act is not new. In the case of People vs. Manlapaz, 88 SCRA 704, We held that the victim, 13 years old at the time of the commission of the act but with the mentality of a 5-year old child, "is incapable of giving rational consent to the carnal intercourse." And, in the case of People vs. Gallano, 108

124 SCRA 405, the judgment of conviction by the trial court was affirmed by Us because complainant Victoria Micaller, who was then 31 years old at the commission of the act but had the mentality of a 7-year old child, "is a retardate or one mentally ill, such that she was incapable of offering any effective or real resistance to appellant's sexual assault (p. 407, Id) . . . Appellant's insistence that there was consent because he and complainant were sweethearts is therefore of no avail. In her defective state of mind, complainant could not have induced appellant to nurse a desire to have her for a sweetheart, nor could she have possessed the capacity to understand the meaning of having such a relationship with appellant. Her mental condition was such that she would not resist sexual advances because she was so deprived of reason to make any effective resistance. Hence, by her being so deprived, the act is made possible in the same way when there is active resistance but same is overcome by force and threat, which is the essence of the crime of rape (p. 413, Id)." 2. ID.; ID.; SEXUAL INTERCOURSE WITH A 17-YEAR OLD WOMAN WHOSE MENTAL CAPACITY IS THAT OF A 7-YEAR OLD CHILD CONSTITUTES RAPE. Assuming that complainant Vilma Ortega voluntarily submitted herself to the bestial desire of appellant still the crime committed is rape under paragraph 3 of Article 335 of the Revised Penal Code. This is so even if the circumstances of force and intimidation, or of the victim being deprived of reason or otherwise unconscious are absent. The victim has the mentality of a child below seven years old. If sexual intercourse with a victim under twelve years of age is rape, then it should follow that carnal knowledge with a seventeenyear old girl whose mental capacity is that of a seven year old child would constitute rape. "It would be a reproach to the state to hold that it affords no protection to morons of weak mental capacity, like the victim, against the base passions of unprincipled men." (People vs. Manlapaz, 88 SCRA 704) 3. ID.; ID.; PENALTY OF RECLUSION PERPETUA; NOT SUBJECT TO INDETERMINATE SENTENCE OF LAW. Republic Act No. 4111 which took effect in June 1964 increased the penalty of rape from reclusion temporal to reclusion perpetua. Indeterminate sentence law does not apply to persons convicted of offenses punishable with reclusion perpetua which is an indivisible penalty. "The appellant is not entitled to any mitigating circumstance. Hence, whether or not he voluntarily surrendered and whether or not his crime was aggravated by dwelling is immaterial. The penalty will still be reclusion perpetua." (People vs. Arizala, 112 SCRA 615) 4. CIVIL LAW; DAMAGES; PERSONS GUILTY OF RAPE ALSO LIABLE TO INDEMNIFY OFFENDED PARTY. With respect to the award of damages, Article 345 of the Revised Penal Code provides that persons guilty of rape shall also be sentenced to indemnify the offended party. In People vs. Pea, 80 SCRA 589, We held that the imposition of an indemnity or civil liability is mandated in Articles 100, 104(3), 107 and 345(1) of the Revised Penal Code.

[G.R. No. L-47941. April 30, 1985.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME TOMOTORGO y ALARCON, defendant-appellant. SYLLABUS 1. CRIMINAL LAW; PARRICIDE; CRIMINAL LIABILITY; ACCUSED LIABLE FOR ALL CONSEQUENCES OF HIS FELONIOUS ACT; CASE AT BAR. Article 4 of the Revised Penal Code expressly states that criminal liability shall be incurred by any person committing a felony (delito) although the

125 wrongful act be different from that which he intended and that the accused is liable for all the consequences of his felonious acts. The reference made by the accused to Article 263 of the Revised Penal Code which prescribes graduated penalties for the corresponding physical injuries committed is entirely misplaced and irrelevant considering that in this case the victim died very soon after she was assaulted. It will be, therefore, illogical to consider appellant's acts as falling within the scope of Article 263 of the Revised Penal Code. The crime committed is parricide no less. We are in complete accord with and we sustain the ruling made by the courts below that the accused is not entitled to the benefits of the Indeterminate Sentence Law. 2. ID.; ID.; ID.; ID.; ACCUSED ENTITLED ONLY TO MITIGATING CIRCUMSTANCE OF LACK OF INTENT TO COMMIT SO GRAVE A WRONG. We hold that the fact that the appellant intended to maltreat the victim only or inflict physical injuries does not exempt him from liability for the resulting and more serious crime committed. In the case of People vs. Climaco Demiar, 108 Phil. 651, where the accused therein had choked his mother in a fit of anger because the latter did not prepare any food for him, it was ruled that the crime committed by Demiar is parricide (Article 246, Revised Penal Code), the deceased victim of his criminal act being his legitimate mother. Said crime was declared as punishable with reclusion perpetua to death. As held by this Court in that case, the appellant is only entitled to the mitigating circumstance of lack of intent to commit so grave a wrong (Article 13 (3 Id).) The penalty imposed on the herein accused is therefore correct in the light of the relevant provisions of law and jurisprudence.

[G.R. No. 73818. February 27, 1987.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LESLIE LAGASCA, accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; TESTIMONY OF POSEUR BUYER GIVEN CREDENCE. We find the errors ascribed belied by the record. Pfc. Arthur Alcoran, the NARCOM agent, who acted as the poseur buyer, categorically and straight-forwardly testified that LAGASCA voluntarily sold him the two sticks of marijuana cigarettes for five (P5.00) pesos. Alcoran's declarations were corroborated by Pat. Quindo, who was with him during the operation, and by Sgt. Villamor, the team leader. We find no reason, from the evidence at hand, to discredit their declarations. 2. CRIMINAL LAW; DOPE PUSHING; ENTRAPMENT, NOT A BAR TO PROSECUTION LAGASCA was not instigated nor induced into selling the marijuana cigarettes by Pfc. Alcoran. What the NARCOM agent did was to employ ways and means of entrapping and catching a malefactor in flagrante. Entrapment is no bar to prosecution and conviction. It is not contrary to law. 3. REMEDIAL LAW; EVIDENCE; VIOLATION OF SECTION 4 OF DANGEROUS DRUGS ACT ESTABLISHED IN CASE AT BAR. The defense allegation that the Trial Court should have considered LAGASCA to have violated instead Section 8, Article II of the Dangerous Drugs Act, punishing Illegal Possession of Prohibited Drugs, requires no extended discussion. The evidence on record sufficiently establishes that LAGASCA gave two sticks of marijuana cigarettes to agent Alcoran for which he was given and received a marked five-peso bill and fully supports conviction for drug pushing in violation of Section 4 of that law.

126

4. CRIMINAL LAW; INDETERMINATE SENTENCE LAW; NOT APPLICABLE TO ACCUSED GUILTY OF SELLING PROHIBITED DRUGS; LIFE TO DEATH SENTENCE, IMPOSABLE PENALTY. LAGASCA's Certificate of Birth (Exhibit "1") shows that he was born on 6 September 1967. He was 17 years, 6 months and 21 days old at the time of the commission of the offense. Ordinarily, he would be entitled to the privileged mitigating circumstance of minority under Article 68 of the Revised Penal Code. However, because Presidential Decree No. 1675, amending Republic Act No. 6425 imposes "life imprisonment to death" for sale of prohibited drugs, he is not entitled to an indeterminate sentence. We can only recommend that executive clemency be extended to him.

[G.R. No. L-72998. July 29, 1988.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANGEL "TOTOY" ACAYA, accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; PRESUMPTION OF OFFICIAL DUTY; THAT THE SAME HAS BEEN REGULARLY PERFORMED; CASE AT BAR. No adequate proof has been presented to show any deletion in, or tampering of, the stenographic notes. Absent sufficient showing, the presumption is that official duty has been regularly performed by the stenographer who took down the notes of the proceedings (People vs. Arias, G.R. No. L-40531. January 27, 1981, 102 SCRA 303). 2. ID.; ID.; CONVICTION; FINDINGS OF GUILT BASED ON THE STRENGTH OF THE PROSECUTION'S EVIDENCE. Our own review and assessment of the evidence confirm the Trial Court's finding of guilt. The testimonies of prosecution eyewitnesses, Julius Catalua, Rodrigo Sinag, and Roel Barsana, adequately establish appellant's culpability. Catalua was standing beside the victim when he saw appellant suddenly come and stab the victim while they were dancing prompting said witness to hold appellant's arm. After the victim fell, Sinag, in turn, held appellant's hand, which wielded the knife. Catalua and Barsana, respectively testified, positively and emphatically, that they saw appellant thrust the knife on the left side of the victim. The victim's ante mortem statement thumbmarked with his own blood (Exh. "H"), taken by the PC investigator on the way to the hospital, which identified appellant as the assailant, and wherein the victim declared that he believed that he was going to die because of his stab wound, further buttresses appellant's guilt. 3. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; TREACHERY; PRESENT IN THE CASE AT BAR DUE TO THE SUDDENNESS OF THE STABBING OF THE VICTIM. Treachery was present considering the suddenness with which appellant stabbed the victim. The latter was totally unprepared for the unexpected attack. He was dancing at the precise time of the incident and was given absolutely no chance to defend himself. 4. ID.; ID.; EVIDENT PREMEDITATION; ELEMENTS; WHEN NOT CONSIDERED TO QUALIFY MURDER; NOT APPRECIATED IN THE CASE AT BAR. Evident premeditation, however, should not be appreciated, the elements thereof not having been sufficiently proven, namely, the time when the offender determined to commit the crime; an act manifestly indicating that the accused had clung to his determination; and a sufficient lapse of time between such determination and execution, to allow him to reflect upon the consequences

127 of his acts. Evident premeditation cannot be considered to qualify murder where it is not shown when the plan to kill was hatched, or what time elapse before it was carried out (People vs. Corpus, 107 Phil. 44 [1960]).The fact that another knife was found on the person of appellant aside from the very knife used in the commission of the crime is no proof of "a cold and deep meditation on the plan and tenacious persistence in the accomplishment of the criminal act" as the Trial Court had put it. This Court has consistently held that evident premeditation must be based on external acts and that such must be evident and not merely suspected indicating deliberate planning (U.S. vs. Ricafor, 1 Phil. 173 [1902]; People vs. Yturriaga, 86 Phil. 534 [1950]; U.S. vs. Cornejo, 28 Phil. 457 [1914]). 5. ID.; ID.; TREACHERY AND EVIDENT PREMEDITATION; WHEN DEEMED NOT INCLUDED IN A PLEA OF GUILTY; PEOPLE VS. GRAVINO, 122 SCRA 123, CITED AS AUTHORITY; CASE AT BAR. The contention that since appellant pleaded guilty to the Information, the aggravating circumstances of treachery and evident premeditation must be deemed fully established inasmuch as a guilty plea covers both the crime as well as its attendant circumstances, is unacceptable, in the light of the evidence negating the presence of those circumstances. The case of People vs. Gravino (G.R. No. L-31327-29, May 16, 1983, 122 SCRA 123) is authority for the ruling that a plea of guilty cannot be held to include treachery and evident premeditation where the evidence adduced does not adequately disclose the existence of those qualifying circumstances. 6. ID.; ID.; IGNOMINY; DEFINED; NOT APPRECIATED IN THE CASE AT BAR. Neither should the aggravating circumstance of ignominy be appreciated, defined as "a circumstance pertaining to the moral order which adds disgrace and obloquy to the material injury caused by the crime" (U.S. vs. Abaigar, 2 Phil. 417 [1903]). The fact that the crime was committed in a public place and in the presence of many persons did not necessarily tend to make the effects of the crime more humiliating or put the offended party to shame. 7. ID.; ALTERNATIVE CIRCUMSTANCE; INTOXICATION; CANNOT BE CONSIDERED AS MITIGATING AS THE FACT OF INTOXICATION WAS AFTER THE INCIDENT OF THE CRIME. Appellant's averment that intent to kill was inexistent because the accused was in a state of intoxication, is unmeritorious. In the first place, with the plea of guilty, appellant had admitted the commission of the unlawful act. In the second place, proof is inadequate that appellant was intoxicated to the point of blurring his reason and depriving him of a certain degree of control at the precise time of the stabbing. Prosecution eyewitness Catalua categorically testified that he did not notice that appellant was drunk. The testimony of Sgt. Teofilo de la Isla, the police investigator, to the effect that when he arrested appellant at around 11:00 o'clock the same evening of the incident, the latter was very drunk and could not answer questions, only proves the fact of intoxication after the incident but not at the precise time of the commission of the crime. As counsel de officio himself stated in Appellant's Brief, there was a "blockout of what happened to the assailant Angel Acaya" after the stabbing. 8. REMEDIAL LAW; EVIDENCE; DISPUTABLE PRESUMPTION; THAT THE UNLAWFUL ACT OF ACCUSED WAS DONE WITH AN UNLAWFUL INTENT. But, certainly, appellant's act of stabbing the victim with the use of a deadly weapon such as a kitchen knife, producing a severe and penetrating wound which caused his death, indicates no other intention than that of the desire to kill. The rule is unchanged that if it is proved that the accused committed the unlawful act charged, the presumption is that the act was done with

128 an unlawful intent and it is up to the appellant to rebut this presumption. That burden has not been satisfactorily discharged in this case. 9. CRIMINAL LAW; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER; WHEN SURRENDER CONSIDERED VOLUNTARY; NOT PROVEN IN THE CASE AT BAR. The mitigating circumstance of voluntary surrender has neither been proven. There is no showing that the surrender of the accused was made voluntarily or spontaneously. In fact, the defense stresses that appellant was drunk when apprehended. The mere fact that appellant did not resist his arrest cannot be equated with voluntary surrender (People vs. Reyes, No. L33154, February 27, 1976, 69 SCRA 474). A surrender is not voluntary when forced by circumstances. To be voluntary, a surrender must be spontaneous, that is, there must be an intent to submit oneself to the authorities, either because he acknowledges his guilt or because he wishes to save them from the trouble and expense to be necessarily incurred in his search and capture (People vs. Sakam, 61 Phil. 27 [1934]). 10. ID.; MURDER; PENALTY; ART. 248, REVISED PENAL CODE; RECLUSION TEMPORAL, MAXIMUM PERIOD, TO RECLUSION PERPETUA DUE TO ABOLITION OF CAPITAL PUNISHMENT IN THE 1987 CONSTITUTION. The crime committed is Murder, qualified by treachery, attended by the mitigating circumstance of plea of guilty. Pursuant to Article 248 of the Revised Penal Code, the imposable penalty should be reclusion perpetua, as imposed by the Trial Court. However, with the abolition of capital punishment in the 1987 Constitution, the penalty for Murder is now reclusion temporal in its maximum period to reclusion perpetua. The penalty is imposable in its minimum period, or from seventeen (17) years, four (4) months and one (1) day to eighteen (18) years and eight (8) months. 11. ID.; ID.; ID.; ID.; ID.; INDETERMINATE SENTENCE LAW APPLIED IN THE CASE AT BAR. For purposes of the Indeterminate Sentence Law, the range of the penalty next lower to that prescribed by the Revised Penal Code for the offense is prision mayor in its maximum period to reclusion temporal in its medium period, or from ten (10) years and one (1) day to seventeen (17) years and four (4) months.

[G.R. No. L-71142. September 19, 1988.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOPE MARALIT and ROMY PASIA, accused-appellants. SYLLABUS 1. CRIMINAL LAW; CONSPIRACY; LIABILITY AS CONSPIRATOR SHOWN BY ACCUSED'S PRESENCE AT THE SCENE OF THE CRIME; ABSENCE OF FIREARM DOES NOT NEGATE CONSPIRACY. The two brothers who witnessed the commission of the crime positively declared, both in their sworn statements and in their testimonies in open Court, that accusedappellant was in the company of Pedro Pacheca (deceased) and Maning Mendoza (at-large) on the elevated area from where they shot the victim. The fact that accused-appellant was not carrying a firearm does not negate conspiracy. The fact is that, with Pacheca and Mendoza, accused-appellant lay in ambush in an isolated mountain waiting for the victim to pass by. The place where the crime took place was the usual route where the victim used to pass on the way to the farm that he was tenanting. Accused-appellant was also seen by the brothers in a crouching position, just as Pacheca and Mendoza were, and close to one another, as the shots were fired. In other words, he was not merely near the scene of the crime but right

129 thereat. All the foregoing circumstances coupled with prior antecedents, like having been with the assailants when they threatened the victim, closeness of personal association, and concurrence of sentiment, evidence knowledge of and intentional participation in the furtherance of the common criminal intent. 2. ID.; ID.; ID.; ACT OF ONE IS THE ACT OF ALL. It cannot be said, as the defense contends, that accused-appellant's presence was merely "passive." Neither could he have been there out of a "sense of good fellowship" only. He was there lending, at the very least, moral if not material aid. He is, therefore, equally liable for the death of the victim. Each conspirator is said to be the agent of the other. In contemplation of law, the act of one is the act of all (People vs. Liza, G.R. No. L-72316-17, July 27, 1987, 152 SCRA 321; People vs. Beltran, G.R. No. L-37168-19, September 13, 1985, 138 SCRA 522). 3. ID.; ID.; ID.; A CO-CONSPIRATOR NEED NOT BE IMPLICATED BY ACTUAL ASSAILANTS; CONSPIRACY IS GENERALLY INFERRED FROM ACTS DONE IN PURSUANCE OF THE SAME OBJECTIVE. To establish conspiracy, it is not essential as opined in the dissenting opinion, that a coconspirator be implicated also by the actual assailants. Besides, that would have been impossible in this case since Pacheca had died and Mendoza has remained at-large till the present. Nor need there be proof as to a previous agreement to commit the crime. It is sufficient that the malefactors have acted in concert pursuant to the same objective (People vs. Labinia, G.R. No. L-38140, July 20, 1982, 115 SCRA 224). Conspiracy need not be established by direct evidence of acts charged, but may and generally must be proven by a number of indefinite acts, conditions and circumstances (People vs. Ancheta, G.R. No. L-70222, February 27, 1987, 148 SCRA 179). The very existence of a conspiracy is generally a matter of inference deduced from certain acts of a person accused, done in pursuance of an apparent criminal or unlawful purpose in common between them (People vs. Laguardia, G.R. No. L-63243, February 27, 1987, 148 SCRA 137). In People vs. Cadag, G.R. No. L-13830, May 31, 1961, 2 SCRA 388, it was even acknowledged that conspiracy can seldom be proved except by circumstantial evidence. 4. REMEDIAL LAW; EVIDENCE; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION BY CREDIBLE WITNESSES. Maralit's alibi that at the time of the incident, he was working at the farm of the Corporation and, therefore, could not have been at the crime scene cannot prevail over the positive identification made by credible prosecution witnesses (People vs. Pecato, G.R. No. L-41008, June 18, 1987, 151 SCRA 14). 5. ID.; ID.; ID.; MAY BE CREDITED WHERE THERE IS IMPOSIBILITY TO BE AT THE CRIME SCENE AT THE SAME TIME. Besides, the situs of the crime was only about four (4) kilometers from the place of work of accusedappellant so that it was not impossible for him to have been at the place of the commission of the crime at the time it was committed. For alibi to be considered, it must be established that it was impossible for the accused to be at the scene of the crime at the same time (People vs. Ornoza, G.R. No. L-56283, June 30, 1987, 151 SCRA 495). 6. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; TREACHERY; PRESENT WHEN VICTIM WAS SHOT WITHOUT RISK TO ASSAILANTS. The crime committed is Murder, qualified by treachery. The sudden and unexpected attack caught the victim completely unaware (People vs. Beltran, G.R. No. L-38049, July 15, 1985, 137 SCRA 508). The four wounds with entrances on the back of the victim further bolster the attendance of treachery. Thus, in People vs. Abubakar Asil, G.R. No. L-32102, February 10, 1986, 141 SCRA 286, it was

130 held that there was alevosia or treachery because the defenseless victim was shot from behind without risk to his assailants specially in this case where the latter perched themselves on an elevated area. 7. ID.; PENALTY; MURDER NOW PENALIZED BY RECLUSION TEMPORAL IN ITS MAXIMUM PERIOD TO RECLUSION PERPETUA; INDETERMINATE SENTENCE LAW, APPLIED. Pursuant to Article 248 of the Revised Penal Code, the imposable penalty should be reclusion perpetua, as imposed by the Trial Court. However, with the abolition of capital punishment in the 1987 Constitution, the penalty for Murder is now reclusion temporal in its maximum period to reclusion perpetua. In the absence of any modifying circumstances, the penalty is imposable in its medium period, or from eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. For purposes of the Indeterminate Sentence Law, the range of the penalty next lower to that prescribed by the Revised Penal Code for the offense is prision mayor in its maximum period to reclusion temporal in its medium period, or, from ten (10) years and one (1) day to seventeen (17) years and four (4) months.

[G.R. No. L-69934. September 26, 1988.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIANITO INTINO, defendant-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ABSENCE OF EVIL MOTIVE TO IMPLICATE A CLOSE RELATIVE, BOLSTERS CREDIBILITY. Witnesses Calipayan had no motive to implicate appellant who is their close relative being the son of the first cousin of Rosario Calipayan as admitted by appellant himself in his testimony. 2. ID.; ID.; DYING DECLARATION; NO PROBATIVE VALUE WHERE THE DECEASED WAS NOT IN A POSITION TO IDENTIFY HIS ASSAILANT. We do not question the credibility of witness Segundina Delda in declaring that her brother, Bienvenido Caluser, made a dying statement inside the bus that Pare Benny wounded him. While there may be such statement made since that was the belief of the deceased Bienvenido Caluser, We cannot give it probative value. As already shown earlier, Bienvenido Caluser was not in a position to identify his assailant as he was stabbed from behind and when he, already wounded, bloodied and weak from his wounds, took a look at his assailant, Bienvenido Caluser was again stabbed several times by the appellant giving him no opportunity to fully identify his attacker. Maybe because of the fact that Bienvenido Caluser and Marianito Intino had no quarrel or misunderstanding in the past the former never thought of the latter as his attacker, thus he uttered someone else's name who was their drinking guest earlier as his attacker. 3. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; TREACHERY; MANIFEST WHERE THE ATTACK WAS SUDDEN AND UNEXPECTED. There is no question that there was treachery as the attack that came from behind was so sudden and unexpected leaving the poor victim helpless to defend himself. 4. ID.; MURDER; IMPOSABLE PENALTY. With the abolition of the death penalty, the penalty now imposed by law for the crime of murder is reclusion temporal in its maximum period to reclusion perpetua. 5. ID.; INDETERMINATE SENTENCE LAW; MURDER, PENALTY. Considering the provisions of the Indeterminate Sentence Law, the maximum

131 imposable penalty in the case at bar is the medium period of the aforementioned period (that is, the higher half of reclusion temporal maximum) and the minimum is one degree lower than the prescribed penalty now of reclusion temporal maximum to reclusion perpetua.

[G.R. Nos. 77930-31. February 9, 1989.] JEREMIAS EBAJAN, petitioner, vs. THE HON. COURT OF APPEALS, (former Special Second Criminal Cases Division), respondent. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT IMPAIRED BY RELATIONSHIP. Anent the credibility of the Cruz brothers, We rule that special friendly relations that existed between the Cruz brothers and the victims do not impair their credibility. It has been held that relationship of a witness to a party does not impair his credibility (People vs. Demetrio, L-48255, September 30, 1983, 124 SCRA 914). Friendship of the witness with the victims' families is not sufficient motive for witness to testify falsely against the accused (People vs. Salcedo, L-37080, May 3, 1983, 122 SCRA 54). 2. ID.; ID.; ID.; NOT AFFECTED BY ALLEGED RECORD OF BAD CHARACTER. The alleged record of bad character affect their credibility considering that the character evidence against them is so irrelevant to establish a reputation for dishonesty and untruthfulness. Time and again, We have also ruled that contradiction in the testimonies of the witness instead of suggesting prevarication, indicates veracity, thereby bolstering the probative value of the testimonies as a whole (People vs. Barros, L-34249, May 3, 1983, 122 SCRA 34). 3. ID.; ID.; ID.; FINDINGS OF FACTS OF THE TRIAL COURT ENTITLED TO GREAT WEIGHT. Conclusions and findings of facts by the trial court are entitled to great weight on appeal and should not be disturbed unless for strong and cogent reasons, because the trial court is in a better position to examine real evidence, as well as to observe the demeanor of witnesses while testifying in the case (Chase vs. Buencamino, Sr., L-20395, May 13, 1985, 136 SCRA 365). 4. ID.; ID.; ID.; MOTIVE; NOT NECESSARY WHERE THE ACCUSED ADMITS COMMISSION OF THE ACT. We disagree with petitioner that proof of motive is relevant in the case at bar. Motive is important in cases where there is a doubt as to whether the defendant is or is not the person who committed the offense. But where the defendant admits the killing, it is not necessary to inquire into his motive for doing the act (People vs. Arcillas, G.R. L-11792, June 30, 1959). 5. ID.; ID.; JUSTIFYING CIRCUMSTANCES; SELF DEFENSE; PARTY INVOKING THE SAME HAS THE BURDEN OF PROOF TO ESTABLISH SUCH CLAIM. The direct and circumstantial evidence established at the trial sufficiently showing his culpability is bolstered by the petitioner's admission of having fired the shots that killed the victims. The law is well-settled that a person who seeks justification for his act must prove by clear and convincing evidence the presence of the necessary justifying circumstances for having admitted wounding or killing his adversary, and he is criminally liable unless he is able to satisfy the court that he acted in legitimate self-defense. Like all matters of defense, the burden of establishing such a claim is on the party relying or invoking it (People vs. Rosario, L-46161, February 25, 1985, 134 SCRA 496).

132 6. ID.; ID.; WEIGHT AND SUFFICIENCY; ACCUSED MUST RELY ON THE STRENGTH OF HIS EVIDENCE NOT ON THE WEAKNESS OF THE PROSECUTION. The accused must rely on the strength of his own evidence and not on the weakness of the prosecution for even if the latter were weak, it could not be disbelieved after the accused had admitted the killing (People vs. Llamera, L-21604-5-6, May 25, 1973, 51 SCRA 48, People vs. Talaboc, 30 SCRA 87). 7. ID.; ID.; JUSTIFYING CIRCUMSTANCE; SELF-DEFENSE; CANNOT BE ENTERTAINED UNLESS CORROBORATED BY SEPARATE COMPETENT EVIDENCE. The plea of self-defense cannot be justifiably entertained where it is not only uncorroborated, as in this case, by any separate competent evidence but in itself is extremely doubtful (People vs. Flores, L24526, February 29, 1972, 43 SCRA 342) for failure of petitioner to present in evidence the water pipe allegedly used by Arturo Lubrico and the gun allegedly used by Emeterio Rodas, Jr. 8. CRIMINAL LAW; HOMICIDE; PENALTY; CASE AT BAR. In modifying the penalty and civil liability imposed by the trial court, the respondent Court of Appeals said: "There is no doubt that the voluntary surrender of appellant to his commanding officer is mitigating, not only because it was done so before he was arrested, but because his commanding officer is an agent of a person in authority. In view of the presence of the mitigating circumstance of voluntary surrender, the penalty of reclusion temporal for the two cases should be imposed in its minimum period (Article 64, par. 2, Revised Penal Code). "Applying the Indeterminate Sentence Law, appellant is sentenced in Criminal Case No. 5353, to a penalty of imprisonment of from eight (8) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum; and to pay the heirs of Arturo Lubrico as indemnity the amount of P30,000.00 (People v. Moreno, 129 SCRA 461). "In Criminal Case No. 5364, appellant is likewise sentenced to a penalty of imprisonment of from eight (8) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum, and to indemnify the heirs of Emeterio Rodas, Jr. the amount of P30,000.00. "Attorney's fees awarded in the two cases is without legal basis. Under Article 2308 (No. 9) of the Civil Code of the Philippines provided that attorney's fees can only be recovered 'in a separate civil action to recover civil liability arising from crime.' This was likewise the ruling in People vs. Conrado Biador, C.A. G.R. No. 19589-R, Jan. 21, 1959, 55 O.G. No. 32, p. 6384)." (Rollo, p. 54). We agree.

[G.R. No. L-63971. May 9, 1989.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO ELESTERIO y CARPENTERS, defendant-appellant. FE CRUZ, petitioner, vs. EX-JUDGE ENRIQUE AGANA, THE CHIEF, NEW BILIBID PRISON, MUNTINLUPA, METRO MANILA, respondents. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; TRIAL; CORROBORATIVE TESTIMONY MAY BE DISPENSED WITH. The trial judge had the right to control the conduct of the trial and to bar unnecessary testimony, such as that intended merely to corroborate relatively unimportant matters, that would only unnecessarily delay the case. (People v. Barabasa, 64 Phil. 399)

133

2. CONSTITUTIONAL LAW; DUE PROCESS; REPRESENTATION BY A NON-LAWYER IN THE COURT OF FIRST INSTANCE, DENIAL OF DUE PROCESS; CURED BY SUBSEQUENT RETAINER OF A MEMBER OF THE BAR. As for the circumstance that the defense counsel turned out later to be a non-lawyer, it is observed that he was chosen by the accused himself and that his representation does not change the fact that Elesterio was undeniably carrying an unlicensed firearm when he was arrested. At any rate, he has since been represented by a member of the Philippine bar, who prepared the petition for habeas corpus and the appellant's brief. 3. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS UNDER PRESIDENTIAL DECREE NO. 9; ELEMENTS. The elements of the offense punished by General Order No. 6 in relation to Par. 2, Presidential Decree No. 9, as amended, are first, the carrying of a firearm outside one's residence, and second, the motive for such act, which is "in furtherance of or to abet, or in connection with subversion, rebellion, insurrection, lawless violence, criminality, chaos or public disorder." 4. ID.; ID.; ID.; SECOND ELEMENT IN CASE AT BAR, MISSING. A reading of the information filed against the accused will readily show that the second element of the imputed crime is not alleged at all. All that is averred is that Elesterio, on the date and place indicated, had in his possession and was carrying outside his residence a firearm and two live bullets without the proper permit or authorization. That is only the first element. There is no allegation in the information that the accused was carrying the weapon outside his residence for the purposes mentioned in the laws supposedly violated. 5. ID.; ILLEGAL POSSESSION OF FIREARMS UNDER SECTION 2692, REVISED ADMINISTRATIVE CODE; MERE POSSESSION OF UNLICENSED FIREARM, ILLEGAL. Under Section 2692 of the Revised Administrative Code, as amended, mere possession of an unlicensed firearm is malum prohibitum and is punishable regardless of lack of criminal intent or proof of the ownership of the firearm by another person. 6. REMEDIAL LAW; CRIMINAL PROCEDURE; NATURE OF THE OFFENSE DETERMINED BY THE ALLEGATIONS IN THE COMPLAINT OR INFORMATION. It is well-settled that the nature and cause of the accusation are determined not by the name given to the offense but by the description of the manner and circumstances in which it was committed. 7. ID.; ID.; ID.; DESIGNATION OF THE OFFENSE, A CONCLUSION OF LAW MADE BY THE PROSECUTION WHICH DOES NOT BIND THE COURT. The designation of the offense or of the law violated is a conclusion of law made by the prosecuting officer but this is not binding on the court. 8. ID.; ID.; ID.; CASE AT BAR. The information in the case at bar contained allegations (later established at the trial) which were sufficient to warrant the conclusion that the offense committed by the accused was violation of Section 2692 of the Revised Administrative Code as amended. He should therefore have been meted the penalty prescribed therein, not the sentence of life imprisonment for violation of the presidential decree. 9. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARM UNDER SECTION 2692 OF THE REVISED ADMINISTRATIVE CODE; PENALTY. The prescribed penalty is imprisonment for a period of not less than one year nor more than five years and a fine of not less than P1,000.00 nor more than

134 P5,000.00 in the discretion of the court. The recommendation of the Solicitor General, considering the facts and circumstances of this case, is "an indeterminate penalty of imprisonment from three years and one day as minimum to five years as maximum and a fine of P3,000.00, deducting from the sentence such period of detention, if any, to which the accused may be entitled."

[G.R. No. 70713. June 29, 1989.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BARTOLOME GALANG, accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE APPELLATE COURT, GENERALLY NOT DISTURBED ON APPEAL. We find no reason to disturb the findings of the appellate court. This is in accordance with the long established rule that when issues raised are basically factual and essentially involve an appreciation of evidence the findings of the trial court, affirmed by the appellate court, are in turn binding on this Court in the absence of a misapprehension of facts of grave abuse of discretion. 2. ID.; ID.; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY UPHELD ON APPEAL. Moreover, there is the time-honored doctrine, which is applicable here, that appellate courts will generally not disturb the findings of the trial court on the issue of credibility of witnesses, unless certain facts of substance and value have clearly and plainly been overlooked or neglected and that, if considered, might affect the result of the case. 3. CRIMINAL LAW; RAPE; PENALTY IMPOSABLE UNDER THE INDETERMINATE SENTENCE LAW. In view of the heinousness of the offense and the tender age of the offended party, who shall live with the stigma of such ravishment all her life, that the penalty imposed by the trial court should be increased. The imposable penalty for the offense of rape as provided in Article 335 of the Revised Penal Code is reclusion perpetua, a single indivisible penalty which, pursuant to the first paragraph of Article 63 of the same Code, should generally be applied regardless of any mitigating or aggravating circumstances that might have attended the commission of the deed. Applying the Indeterminate Sentence Law to the accused, the maximum of the penalty to be imposed upon him shall be the medium period of reclusion temporal, that is from 14 years, 8 months and 1 day to 17 years and 4 months. The minimum of the indeterminate penalty shall be within the range of the penalty next lower to that prescribed by the Code for the offense which is prision mayor to be applied in any of its period in the discretion of the Court. Exercising its discretion this Court fixes the minimum period from 10 years and 1 day to 12 years. 4. ID.; APPLICATION OF INDIVISIBLE PENALTIES UNDER ARTICLE 63 OF THE REVISED PENAL CODE; QUALIFIED BY ARTICLE 68 OF THE SAME CODE. We hold that Article 68 of the Revised Penal Code is an exception or limitation of the first paragraph of Article 63 because, first, the said first paragraph of Article 63 is a general rule: secondly, Article 68 follows, or comes after, Article 63; and thirdly, Article 68 is favorable to the accused. All these grounds are sanctioned by well known rules of statutory construction which need not be stated here. 5. ID.; PENALTIES; A MINOR NOT GIVEN THE BENEFIT OF SUSPENDED SENTENCE, ENTITLED TO THE PRIVILEGED MITIGATING CIRCUMSTANCE; REASONS. Whether or not Article 68 is applicable to this

135 case, notwithstanding the fact that the accused was not given the benefit of a suspension of sentence under Article 192 of P.D. No. 603, as amended by P.D. No. 1179 (which repealed Article 80), was settled by this Court in the case of People vs. Garcia. In the said case, the Court that there is no incompatibility between granting accused of the ages of 15 to 18 a privileged mitigating circumstance and fixing at 16 the maximum age of persons who are to be placed in a reformatory institution. From this it will be seen that article 68 is not dependent on article 80, nor do these articles complement each other if by complement is meant that they are two mutually completing parts so that article 68 could not stand without article 80. It is to be noticed that article 68 falls under section 2 of Chapter IV entitled "Application of Penalties," while article 80 comes under section 1 of Chapter V entitled "Execution and Service of Penalties." Two different subjects, these. Article 68 as well as its predecessor is an independent provision and has not been merged with article 80 or any other article of the Revised Penal Code. It is an independent provision inoperative only during the suspension of the sentence but possessing all the vigor which article 85 of the Spanish Code had, when the minors are sentenced to jail.

[G.R. No. 57415. December 15, 1989.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PASCUAL BAYLON RILLORTA, WESLEY RILLORTA and WILSON RILLORTA, defendants-appellants. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; TREACHERY; NOT ESTABLISHED IN CASE AT BAR. The assault upon the deceased was not attended by treachery for it was preceded by a heated exchange of words between the appellants and the deceased (People vs. Ibaez, 56 SCRA 210; People vs. Quiban, 131 SCRA 459; People vs. Visagar, 93 Phil. 319). It cannot be said that the deceased was caught completely by surprise when the accused took up arms against him. Therefore, the killing was only homicide under Article 249 of the Revised Penal Code, not murder. 2. CRIMINAL LAW; BARANGAY CAPTAIN DEEMED INCLUDED IN PHRASE "PERSON IN AUTHORITY" UNDER ART. 152, REVISED PENAL CODE AND P.D. 299. The crime is a complex one of homicide with assault upon a person in authority under Articles 249 and 148 of the Revised Penal Code in view of the circumstance that when Doton intervened to prevent a violent encounter between the accused and Ramos' group, he was discharging his duty as barangay captain to protect life and property and enforce law and order in his barrio. Under Article 152 of the Revised Penal Code and P.D. 299, a barangay captain (formerly a "barrio lieutenant") is a person in authority (U.S. vs. Baluyot, 40 Phil. 385). 3. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; ALIBI; CANNOT PREVAIL OVER THE POSITIVE IDENTIFICATION OF ACCUSED. Wilson's alibi does not impress us. He averred that he was at Tayug, Pangasinan, from 8:00 p.m. to 11:00 p.m. of May 7, 1979, the day of the incident, to have the tire of a tractor vulcanized, and only returned to Barangobong at about midnight. However, he admitted that it takes only forty (40) minutes to negotiate the distance between Tayug and Barangobong. Hence, if he went to Tayug at 8:00 p.m. to have a tractor tire fixed, it was not physically impossible for him to have returned to Barangobong at 10:00 p.m. when the

136 barangay captain was killed. His alibi prosecution witness, Ceferino Facon, that he assisted in the killing of Doton. 4. CRIMINAL LAW; COMPLEX CRIME OR HOMICIDE WITH ASSAULT UPON A PERSON IN AUTHORITY; PENALTY UNDER THE INDETERMINATE SENTENCE LAW. The penalty for the complex crime of homicide with assault upon a person in authority is the maximum period of the penalty for the more serious crime homicide (Act. 48, Revised Penal Code). That penalty is the maximum period of reclusion temporal (Art. 249, Revised Penal Code). Under the Indeterminate Sentence Law, each of the accused shall suffer an indeterminate penalty, the maximum term of which shall be within the prescribed penalty of reclusion temporal, maximum, and the minimum of which shall be within the range of the next lower penalty of prision mayor in its maximum period also (Act No. 4103).

[G.R. Nos. 85401-02. June 4, 1990.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSALINDA RAMOS y DAVID, defendant-appellant. SYLLABUS 1. CONSTITUTIONAL LAW; RIGHTS OF ACCUSED UNDER CUSTODIAL INVESTIGATION, CONTEMPLATES AN EFFECTIVE TRANSMISSION OF INFORMATION UNDERSTOOD BY PERSON INVESTIGATED. This Court finds that such recital of rights falls short of the requirement on proper appraisal of constitutional rights. We quote the ruling in People v. Nicandro (141 SCRA 289 [1986]): "When the Constitution requires a person under investigation 'to be informed' of his right to remain silent and to counsel, it must be presumed to contemplate the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. As a rule, therefore, it would not be sufficient for a police officer just to repeat to the person under investigation the provisions of Section 20, Article IV of the Constitution. He is not only duty-bound to tell the person the rights to which the latter is entitled; he must also explain their effects in practical terms, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands. In other words, the right of a person under interrogation 'to be informed' implies a correlative obligation on the part of the police investigator to explain, and contemplates an effective communication that results in understanding what is conveyed. Short of this, there is a denial of the right, as it cannot truly be said that the person has been informed' of his rights. Now, since the right 'to be informed' implies comprehension, the degree of explanation required will necessarily vary, depending upon the education, intelligence and other relevant personal circumstances of the person under investigation. Suffice it to say that a simpler and more lucid explanation is needed where the subject is unlettered." 2. ID.; ID.; WAIVER OF RIGHT TO COUNSEL; REQUISITES. Although the right to counsel is a right that may be waived, such waiver must be voluntary, knowing and intelligent (People v. Caguioa, 95 SCRA 2 [1980]). To insure that a waiver is voluntary and intelligent, the Constitution now requires that for the right to counsel to be waived, the waiver must be in writing and in the presence of the counsel of the accused. (Art. III, Section 12(1), Constitution) There is no such written waiver in this case, much less was any waiver made in the presence of counsel.

137 3. REMEDIAL LAW; EVIDENCE; PROSECUTION INVOLVING SALE OR DISTRIBUTION OF DRUG; PRESENCE AND IDENTITY OF POSEURBUYER. The alleged poseur-buyer, who also happens to be the alleged informant, was never presented during trial. The presence and identity of the poseur-buyer is vital to the case as his very existence is being disputed by the accused-appellant who denies having sold marijuana cigarettes to anyone. (People v. Ale, 145 SCRA 50 [1986]) Without the testimony of the poseur-buyer, there is no convincing evidence pointing to the accused as having sold marijuana. (People v. Fernando, 145 SCRA 151 [1986]) In this case, the alleged informant and the alleged poseur-buyer are one and the same person. We realize that narcotics agents often have to keep their identities and those of their informants confidential. For a prosecution involving the sale or distribution of drugs to prosper in this particular case, however, the informant has to testify. The testimony of the poseur-buyer is rendered compelling by the fact that the police officers were situated three blocks away from where the alleged sale took place. They did not see the actual sale of marijuana. Nor does the fact that marked money was found in her possession show incontrovertibly that she is the seller of marijuana. The appellant is a cigarette vendor. By the nature of her job, there is a constant exchange of goods for money. It may be far-fetched but it is possible that she came into possession of the marked money because she accepted it in the course of legitimate sales of cigarettes. Again, it is only the poseur-buyer who could testify that she gave marked money to the appellant in exchange for marijuana sticks. 4. ID.; ID.; ID.; ELEMENT OF SALE MUST BE ESTABLISHED. It is a known fact that drug dealings are hard to prove in court. Precisely because of this difficulty, buy-bust operations have to be conducted and every effort is taken such that the suspected pusher is caught in flagrante selling prohibited drugs. For the culprit to be convicted, the element of sale must be unequivocally established. In this case, the alleged poseur-buyer who could have categorically asserted that she bought marijuana from the appellant was not presented by the prosecution. And Sgts. Ahamad and Sudiacal could not attest to the fact of sale because they were three blocks away. The sale of marijuana was therefore not positively proven. 5. ID.; ID.; ID.; DIRECT AND POSITIVE EVIDENCE, ESSENTIAL. Considering the severe penalty of reclusion perpetua imposed on those who sell or distribute drugs, we have to insure that evidence of culpability must pass the test of the strictest scrutiny. We also have to take into account the oft-repeated defense in violations of the Dangerous Drugs Act that the drugs or the marked money were planted by police officers. More direct and positive evidence is essential. The failure of the appellant to ask why she was being invited for investigation by the NARCOM officers does not ipso facto indicate her guilt. Fear could have prevented her from propounding inquiries to the officers. The fact that the appellant signed the extra judicial confession despite her insistence that its contents were not true does not necessarily signify guilt. As earlier stated the extra judicial confession cannot be accepted as evidence. It is useless for purposes of proof of sale of prohibited drugs. 6. ID.; ID.; SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE FOR CONVICTION; REQUISITES. Rule 133, Section 5 of the Rules of Court provides: Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inference are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt. 7. ID.; ID.; ARREST WITHOUT WARRANT; VALID IN CASE AT BAR. Sgts. Sudiacal and Ahamad testified that there was an informant who apprised

138 them of the presence of a drug pusher at the corner of 3rd Street and Rizal Avenue, Olongapo City. Acting on such information and in their presence, their superior, Captain Castillo, gave the informant marked money to buy marijuana. The informant, now turned poseur-buyer, returned with two sticks of marijuana. Captain Castillo again gave said informant marked money to purchase marijuana. The informant-poseur buyer thereafter returned with another two sticks of marijuana. The police officers then proceeded to the corner of 3rd Street and Rizal Avenue and effected the arrest of appellant. From the above facts, it may be concluded that the arresting police officers had personal knowledge of facts implicating the appellant with the sale of marijuana to the informant-poseur buyer. We hold therefore that the arrest was legal and the consequent search which yielded 20 sticks of marijuana was lawful for being incident to a valid arrest. 8. ID.; ID.; ID.; LEGALITY THEREOF, NOT AFFECTED BY FAILURE ON PROSECUTION TO PROVE THE COMMISSION OF CRIME. The fact that the prosecution failed to prove the sale of marijuana beyond reasonable doubt does not undermine the legality of the appellant's arrest. It is not necessary that the crime should have been established as a fact in order to regard the detention as legal. The legality of detention does not depend upon the actual commission of the crime, but upon the nature of the deed when such characterization may reasonably be inferred by the officer or functionary to whom the law at the moment leaves the decision for the urgent purpose of suspending the liberty of the citizen (People v. Molleda, 86 SCRA 667 [1978]). The obligation to make an arrest by reason of a crime does not presuppose as a necessary requisite for the fulfillment thereof the indubitable existence of a crime (People v. Ancheta, 68 Phil. 415 [1939]). 9. ID.; ID.; POSSESSION OF PROHIBITED DRUGS; PROVED BEYOND REASONABLE DOUBT IN CASE AT BAR. This Court quotes with approval the following arguments of the Solicitor-General: "Appellant's defense falls against the categorical testimony of the NARCOM agents that the trash can was found under the table where her legitimate wares were being sold. This fact was not denied by appellant. Therefore, she was the only person who had access to the trash can. The same was under her immediate physical control. She had complete charge of the contents of the trash can under the table to the exclusion of all other persons. In law, actual possession exists when the thing is in the immediate occupancy and control of the party. But this is not to say that the law requires actual possession. In criminal law, possession necessary for conviction of the offense of possession of controlled substances with intent to distribute may be constructive as well as actual (Black's Law Dictionary Abridge, 5th Edition, pp. 606-607). It is only necessary that the defendant must have dominion and control over the contraband. These requirements are present in the situation described, where the prohibited drugs were found inside the trash can placed under the stall owned by appellant. In fact, the NARCOM agents who conducted the search testified that they had to ask appellant to stand so that they could look inside the trash can under the papag' of the appellant. Hence the trash can was positioned in such a way that it was difficult for another person to use the trash can. The trash can was obviously not for use by her customers. "Appellant's arguments are inherently weak and improbable and cannot stand against the clear evidence pointing to her actual possession of the prohibited drug. The raw facts testified to by the NARCOM agents were corroborated by appellant and their conclusion that she had possession of the marijuana sticks found in the trash can is consistent with law and reason. 10. ID.; ID.; ID.; IMPOSABLE PENALTY. The lower court, however, erred in imposing a fixed penalty of six (6) years and one (1) day for possession

139 of marijuana. Section 1 of the Indeterminate Sentence Law (Republic Act 4103 as amended) provides that in imposing a prison sentence for an offense punished by a law other than the Revised Penal Code, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum which shall not be less than the minimum term prescribed by the same. The penalty prescribed by the Dangerous Drugs Act for possession of marijuana is imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from P6,000 to P12,000.

[G.R. No. 85204. June 18, 1990.] JORGE TAER, petitioner, vs. THE HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. SYLLABUS 1. CRIMINAL LAW; CONSPIRACY; CONSTRUED. There is conspiracy when two or more persons come to an agreement regarding the commission of an offense and decide to commit it. Although the facts may show a unity of purpose and unity in the execution of the unlawful objective, essential however is an agreement to commit the crime and a decision to commit it. Only recently we emphasized the rule that: Conspiracy must be established not by conjectures, but by positive and conclusive evidence. The same degree of proof necessary to establish the crime is required to support a finding of the presence of criminal conspiracy, which is, proof beyond reasonable doubt. (Orodio v. Court of Appeals, G.R. No. 57519, September 13, 1989.) Thus mere knowledge, acquiescence to, or approval of the act, without cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy absent the intentional participation in the transaction with a view to the furtherance of the common design and purpose. 2. ID.; ACCESSORY; ART. 19, REVISED PENAL CODE, APPLICABLE IN THE CASE AT BAR. At most the facts establish Taer's knowledge of the crime. And yet without having participated either as principal or as an accomplice, for he did not participate in the taking of the carabaos, he took part subsequent to the commission of the act of taking by profiting himself by its effects. Taer is thus only an accessory after the fact. Article 19 of the Revised Penal Code states: Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1. By profiting themselves or assisting the offender to profit by the effects of the crime; . . . A person who received any property from another, and used it, knowing that the same property had been stolen is guilty as an accessory because he is profiting by the effects of the crime. By employing the two carabaos in his farm, Taer was profiting by the objects of the theft. 3. ID.; ID.; ANTI-CATTLE RUSTLING LAW (P.D. NO. 533); IMPOSABLE PENALTY. Inasmuch as Taer's culpability is only that of an accessory after the fact, under Art. 53 of the Revised Penal Code, the penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed. The penalty two degrees lower than that imposed under the first sentence of Section 8 of PD No. 533 is arresto mayor maximum or 4 months and one day to 6 months to prision correccional medium or 2 years 4 months and 1 day to 4 years and 2 months. 4. ID.; ID.; ID.; ID.; INDETERMINATE SENTENCE LAW (R.A. 4103); APPLIED. The Revised Penal Code provides that when the penalties

140 prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, the courts shall observe the rule that when there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. Hence the imposable penalty would be prision correccional minimum or 6 months and 1 day to 2 years and 4 months imprisonment. Since the maximum term of imprisonment exceeds one year, we apply the Indeterminate Sentence Law. This law provides that the maximum term of imprisonment shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said code which is prision correccional minimum or 6 months and 1 day to 2 years and 4 months. And the minimum shall be within the range of the penalty next lower to that prescribed by the Code for the offense. The penalty next lower would be in the range of destierro maximum or 4 years 2 months and 1 day to 6 years to arresto mayor medium or 2 months and 1 day to 4 months. 5. REMEDIAL LAW; EVIDENCE; ADMISSION BY THIRD PARTY CANNOT PREJUDICE THE RIGHT OF A PARTY. The settled rule is that the rights of a party can not be prejudiced by an act, declaration, or omission of another. The testimony, being res inter alios acta, can not affect another except as provided in the Rules of Court. This rule on res inter alios acta specifically applies when the evidence consists of an admission in an extrajudicial confession or declaration of another because the defendant has no opportunity to cross-examine the co-conspirator testifying against him. Since this is the only evidence of the prosecution to prove the conspiracy with Namocatcat, this uncorroborated testimony can not be sufficient to convict Taer.

[G.R. No. 77832. September 14, 1990.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANIEL MANGUSAN y BUTETE, JULIO TOKWABAN y SADAKEN and ANDY TONIS y DANIO, accused-appellants. DECISION The accused-appellants are before this Court to question the decision of the Regional Trial Court of La Trinidad, Benguet, convicting them of selling marijuana in violation of the Dangerous Drugs Act and sentencing each of them to life imprisonment and a fine of P20,000.00. 1 The lower court found that the accused were apprehended as a result of a buy-bust operation conducted by a NARCOM team on June 11, 1984, near the Mountain State Agricultural College in Benguet. The team was composed of five persons, with Patrolwoman Mercedes Garcia acting as the poseur/buyer. The other team members were P/Pfc. Elmer Mariano, P/Cpl. Eduardo Garcia, P/Pfc. Virgilio Visperas, and P/Sgt. Murphy Bugtong. All of them testified for the prosecution. The evidence of the People showed that, having been previously informed that there was somebody looking for a buyer of marijuana, the team went with the informer in search of the alleged pusher at his residence near the public market in La Trinidad. The informer talked to the prospective seller, who arranged to meet the buyer after lunch. Returning at two o'clock that same afternoon, the team failed to talk to the suspect, but they tried again at 5 p.m. That was when Garcia finally met the first of the accused-appellants, who was introduced to her as Daniel Mangusan.

141

While the rest of the team followed unobtrusively, Mangusan led Garcia and the informant to a vacant lot near the Benguet General Hospital. The three were joined a few minutes later by Andy Tonis who, after a brief conversation with Mangusan, went to the Capitol Building. The three then proceeded to a waiting shed in front of the Mountain State Agricultural College. When Tonis returned at about 6 p.m., he asked that the sale be made near the Capitol Building, but Garcia refused, insisting that it be made right where they were. Tonis left again and returned after fifteen minutes carrying a plastic bag. He was accompanied by Julio Tokwaban, who was carrying a straw bag. Tokwaban suggested that the sale be made at the vacant lot. After examining the contents of the bag carried by Tokwaban, Garcia agreed and walked with the sellers to the said lot. LibLex On the way, Garcia placed her hand in her pocket the prearranged signal to the other team members that the suspects were carrying marijuana. The other policemen then pounced upon the sellers and after a brief scuffle and chase were able to apprehend them. The two bags were confiscated. The suspects were taken to the Baguio City Police Station for investigation. The plastic bag was found to contain 2.7 kilos, and the straw bag 1 kilo, of what were later subjected to a field test and found to be marijuana leaves. The above incident was narrated by Garcia and the other team members, who corroborated each other's testimony. 2 P/Lt. Carlos Figuerroa, a forensic chemist of the PC Crime Laboratory, affirmed the results of the thin layer chromatography and doquenis levine tests he had conducted showing that the specimens taken from the bags Tonis and Tokwaban were carrying were positive for marijuana. 3 The marijuana leaves were produced in court and offered as exhibits. 4 After the prosecution had rested, Mangusan filed a demurrer to the evidence, which was denied. He was thus deemed to have waived his right to present his defense, conformably to the 1985 Rules of Criminal Procedure. 5 For their part, Tonis and Tokwaban testified that the bags taken from them belonged to one Benny, who had asked them to carry the bags for him. While walking on the road toward Campo Filipino, they were arrested by some men riding in a jeep, but Benny escaped. They claimed they were mauled while under detention. Both denied they had conspired with each other or with Mangusan to commit the crime imputed to them. Tokwaban pleaded the additional circumstance of minority, stressing that he was less than eighteen years old at the time of the alleged offense. No other witnesses were presented by the defense. In convicting all three accused-appellants, the trial court disbelieved the account of the mysterious Benny as the real owner of the marijuana found in their possession. It held that the facts established showed that the three of them were acting in concert, with Mangusan negotiating the deal with Garcia, then ordering Tonis and, through him, Tokwaban, to get the marijuana. There is no question that the three accused-appellants performed their respective roles in the consummation of the sale to Garcia, from the moment Mangusan offered to sell the marijuana to her until the time Tonis and Tokwaban, at Mangusan's bidding, produced the marijuana that was to be the subject of the sale. It is obvious that after the informer had approached Mangusan and they agreed to meet later after lunch, Mangusan contacted Tonis and Tokwaban and asked them to make ready the marijuana they were going to sell later that same day to Garcia. A conspiracy existed among them because, to use the language of the law, they came to an agreement concerning the commission of the felony and decided to commit it. LLjur

142 The accused-appellants make much of the fact that no money was presented in evidence as the consideration for the alleged sale and conclude therefrom that no sale in fact took place. The lack of such evidence did not disprove the sale in light of the positive testimony of Garcia that she offered to buy and Mangusan agreed to sell the marijuana and that the sale did actually take place as also testified to by the other prosecution witnesses. Regarding the alleged inconsistencies in the testimonies of the said witnesses, the Court reiterates the rule that minor disagreement among witnesses do not necessarily reflect on their veracity if their individual narrations are essentially consistent with each other in the important details. The prosecution version of the commission of the crime is believable as a whole, particularly as it is supported by the real evidence of the marijuana confiscated from the accused-appellants. By contrast, their explanation that the marijuana belonged to the mysterious Benny, who merely asked them to carry the bags for him, strains credibility and imagination, more so, since Benny seems to have disappeared into thin air and has never been seen again. It is worth nothing that in the course of the trial of this case, Tokwaban withdrew his original plea of not guilty and substituted it with guilty with the assistance of his council. On that same date, he filed an application for suspension of sentence and commitment of youthful offender under P.D. 603 as amended. But when it was pointed out by the trial court that this application could not be granted because the crime charged against him was punishable with life imprisonment, he decided to withdraw his guilty plea and to reiterate his original plea of not guilty. This was allowed by the trial court without objection from the prosecution. It is now suggested in the People's brief that although Tokwaban could not avail himself of a suspension of sentence because of the life imprisonment imposed upon him, he should nevertheless be entitled to a reduction of that sentence by one degree under the Indeterminate Sentence Law. The reason given is that he was only fifteen years and five months old at the time of the commission of the offense and so could claim the benefits of Articles 68 and 80 of the Revised Penal Code as a youthful offender. The suggestion is not well-taken. The privileged mitigating circumstance of minority is not available in prosecutions under the Dangerous Drugs Act, which is a special law. Thus, in People v. Lacasa, 6 where the accused was 17 years, 6 months and 21 days when he committed the crime, we declared as follows: . . . Ordinarily, he would be entitled to the privileged mitigating circumstance of minority under Article 68 of the Revised Penal Code. However, because Presidential Decree No. 6425 imposes "life imprisonment to death" for sale of prohibited drugs, he is not entitled to an indeterminate sentence. We can only recommend that executive clemency be extended to him. And in People v. Beralde, 7 we also said of the accused who was also a minor at the time of the commission of the offense: . . . He is entitled to the privileged mitigating circumstance of minority under Article 68 of the Revised Penal Code. However, he cannot be given an indeterminate sentence because section 2 of the Indeterminate Sentence Law provides the said law "shall not apply to persons convicted of offenses punished with death penalty or life imprisonment."

143 Presidential Decree No. 1675 imposes "life imprisonment to death" on sale prohibited drugs. We find therefore that the sentence pronounced on each of the accused-appellants, including tokwaban, was correctly imposed. Subject only to the Bill of Rights, all efforts should be taken a heavy toll on the lives and future of our people, especially the youth. The campaign must continue with relentless resolve, that the innocent and the weak may be spared from the misery of this malignant affliction. WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED, with costs against the accused-appellants. SO ORDERED.

[G.R. No. 90625. May 23, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENEDICTO DAPITAN y MARTIN, @ "Benny" and FRED DE GUZMAN, accused. BENEDICTO DAPITAN y MARTIN @ "Benny", accused-appellant. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF LAW; REQUISITES. Due process is satisfied if the following conditions are present: (1) there must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired by it over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing. 2. ID.; ID.; ID.; OBSERVED IN CASE AT BAR. All the requisites or conditions of due process are present in this case. The records further disclose that accused-appellant was given the fullest and unhampered opportunity not only to reflect dispassionately on his expressed desire to plead guilty to a lesser offense which prompted the court to cancel the hearing of 10 February 1987, but also to confront the witnesses presented against him and to present his own evidence. If indeed accused-appellant had been deprived of due process, he would have faulted the trial court not just for failure to apply the Indeterminate Sentence Law, but definitely for more. Yet, he found it futile to go any further. 3. ID.; ID.; PROHIBITION AGAINST IMPOSITION OF CRUEL, DEGRADING AND INHUMAN PUNISHMENT; NOT VIOLATED BY IMPOSING A PENALTY OF RECLUSION PERPETUA FOR SPECIFIC CRIMES. Neither is the penalty of reclusion perpetua cruel, degrading, and inhuman. To make that claim is to assail the constitutionality of Article 294, par. 1 of the Revised Penal Code, or of any other provisions therein and of special laws imposing the said penalty for specific crimes or offenses. The proposition cannot find any support. Article 294, par. 1 of the Revised Penal Code has survived four Constitutions of the Philippines, namely: the 1935 Constitution, the 1973 Constitution, the Freedom Constitution of 1986 and the 1987 Constitution. All of these documents mention life imprisonment or reclusion perpetua as a penalty which may be imposed in appropriate cases. As a matter of fact, the same paragraph of the section of Article III (Bill of Rights) of the 1987 Constitution which prohibits the imposition of cruel, degrading and inhuman punishment expressly recognizes reclusion perpetua.

144 4. CRIMINAL LAW; ROBBERY WITH HOMICIDE; IMPOSABLE PENALTY. As to the appreciation of mitigating circumstances, We also agree with the Solicitor General that since robbery with homicide under paragraph 1 of Article 294 of the Revised Penal Code is now punishable by the single and indivisible penalty of reclusion perpetua in view of the abolition of the death penalty, it follows that the rule prescribed in the first paragraph of Article 63 of the Revised Penal Code shall apply. Consequently, reclusion perpetua must be imposed in this case regardless of the presence of mitigating or aggravating circumstances.

[G.R. No. 90625. May 23, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENEDICTO DAPITAN y MARTIN, @ "Benny" and FRED DE GUZMAN, accused. BENEDICTO DAPITAN y MARTIN @ "Benny", accused-appellant. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF LAW; REQUISITES. Due process is satisfied if the following conditions are present: (1) there must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired by it over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing. 2. ID.; ID.; ID.; OBSERVED IN CASE AT BAR. All the requisites or conditions of due process are present in this case. The records further disclose that accused-appellant was given the fullest and unhampered opportunity not only to reflect dispassionately on his expressed desire to plead guilty to a lesser offense which prompted the court to cancel the hearing of 10 February 1987, but also to confront the witnesses presented against him and to present his own evidence. If indeed accused-appellant had been deprived of due process, he would have faulted the trial court not just for failure to apply the Indeterminate Sentence Law, but definitely for more. Yet, he found it futile to go any further. 3. ID.; ID.; PROHIBITION AGAINST IMPOSITION OF CRUEL, DEGRADING AND INHUMAN PUNISHMENT; NOT VIOLATED BY IMPOSING A PENALTY OF RECLUSION PERPETUA FOR SPECIFIC CRIMES. Neither is the penalty of reclusion perpetua cruel, degrading, and inhuman. To make that claim is to assail the constitutionality of Article 294, par. 1 of the Revised Penal Code, or of any other provisions therein and of special laws imposing the said penalty for specific crimes or offenses. The proposition cannot find any support. Article 294, par. 1 of the Revised Penal Code has survived four Constitutions of the Philippines, namely: the 1935 Constitution, the 1973 Constitution, the Freedom Constitution of 1986 and the 1987 Constitution. All of these documents mention life imprisonment or reclusion perpetua as a penalty which may be imposed in appropriate cases. As a matter of fact, the same paragraph of the section of Article III (Bill of Rights) of the 1987 Constitution which prohibits the imposition of cruel, degrading and inhuman punishment expressly recognizes reclusion perpetua. 4. CRIMINAL LAW; ROBBERY WITH HOMICIDE; IMPOSABLE PENALTY. As to the appreciation of mitigating circumstances, We also agree with the Solicitor General that since robbery with homicide under paragraph 1 of Article 294 of the Revised Penal Code is now punishable by the single and indivisible penalty of reclusion perpetua in view of the abolition of the death

145 penalty, it follows that the rule prescribed in the first paragraph of Article 63 of the Revised Penal Code shall apply. Consequently, reclusion perpetua must be imposed in this case regardless of the presence of mitigating or aggravating circumstances. DECISION This is an appeal from the Decision of the Regional Trial Court of Rizal (Branch 75, San Mateo) 4th Judicial Region, finding the accused-appellant guilty of the crime of Robbery with Homicide and sentencing him to: ". . . suffer the penalty of RECLUSION PERPETUA, and to pay the heirs of the victim Rolando Amil in the amount of Thirty Thousand (P30,000.00) Pesos, without subsidiary imprisonment in case of insolvency." 1 Only the accused-appellant was tried. His co-accused, Fred de Guzman, remained at large and the court ordered the archival of the case as against him, to be revived upon his arrest. The information filed with the court a quo on 7 August 1986 against accusedappellant and his co-accused reads in part as follows: "That on or about the 16th day of May, 1986, in Barangay San Rafael, Municipality of Rodriguez (formerly Montalban), Province of Rizal, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused conspiring and confederating together and mutually helping and aiding one another, with intent to gain, armed with deadly weapon and by means of force and violence, then and there willfully, unlawfully and feloniously took, robbed/stole and carried (sic) away two (2) pieces of men's watches worth One Thousand One Hundred Eighty Eight Pesos (P1,188.00), one (1) pair of long pants worth Two Hundred Fifty Pesos (P250.00) and cash money in the amount of Seventy Five Pesos (P75.00) belonging to Orencia E. Amil, without the knowledge and consent of said owner and to her damage and prejudice in the total amount of One Thousand Five Hundred Thirteen Pesos (P1,513.00), Philippine Currency; that on the occasion of the said robbery and for the purpose of enabling them to take, steal and carry away the above-mentioned articles, the herein accused in pursuance of their conspiracy, did then and there willfully, unlawfully and feloniously, with evident premeditation and taking advantage of their superior strength and with intent to kill, treacherously attack, assault and employ personal violence upon the person of Rolando Amil (an eight year old child) by stabbing him on the neck and hitting him several times on the head with a piece of wood, to prevent him from making an outcry, thereby inflicting upon him physical injuries which directly caused his death." 2 When arraigned on 25 November 1986 with the assistance of counsel de oficio, Atty. Magsanoc, accused entered a plea of not guilty. 3 At the scheduled hearing on 10 February 1987, new counsel de oficio for the accused, Atty. Gabriel Alberto of the Citizens Legal Assistance Office (CLAO) of San Mateo, Rizal, manifested that the accused had expressed to him the desire to enter a plea of guilty to a lesser offense. The court forthwith issued an order reading as follows: "Atty. Alberto of CLAO and de oficio counsel for the accused manifested that the accused has manifested his desire to make a plea of guilty to a lesser offense but the circumstances are yet to be made in details. It appears that there are two mitigating circumstances that maybe applied. The Prosecuting Fiscal made no

146 objection but also manifested that he has to look into the penalty applicable. The counsel for the accused and the Prosecuting Fiscal jointly moved that the hearing of this case be reset to another date. WHEREFORE, reset the hearing of this case for March 9, 1987 at 9:30 A.M. . . ." The scheduled hearing of 9 March 1987 was cancelled and reset to April 13, 1987 in view of the required vacation leave of absence of the judge. On 13 April 1987, upon motion of the prosecution and the defense in view of the projected settlement of the civil liability of this case, the hearing was reset to 19 May 1987. 5 On that date, however, counsel de oficio for the accused did not appear, hence "a report on the projected settlement of the civil aspect of the case cannot be made" and the hearing was reset again to 15 June 1987, 6 which schedule was later on cancelled due to the compulsory retirement of the presiding judge (Judge Conrado Beltran) which took effect on 7 June 1987. 7 In the meantime, Judge Francisco C. Rodriguez, Jr. presided over the trial court. 8 The initial reception of evidence took place on 24 August 1987 with the accusedappellant represented by Atty. Benjamin Pozon, also of the CLAO. On various dates thereafter, hearings were had until the parties completed the presentation of their evidence. Witnesses Orencia Amil and Cpl. Rodolfo Rivera for the prosecution testified during the incumbency of Judge Rodriguez. The rest testified before Judge Edilberto U. Noblejas who succeeded Judge Rodriguez. On 5 May 1989, the trial court promulgated its Decision 9 the dispositive portion of which reads: "WHEREFORE, premises considered, after appraising the evidence presented by the prosecution and the evidence of the defense, the Court finds the accused BENEDICTO DAPITAN y MARTIN GUILTY BEYOND REASONABLE DOUBT of the crime of ROBBERY WITH HOMICIDE, punishable under Article 294, par. 1 of the Revised Penal Code and sentences him to suffer the penalty of RECLUSION PERPETUA, and to pay the heirs of the victim Rolando Amil in the amount of Thirty Thousand (P30,000.00) Pesos, without subsidiary imprisonment in case of insolvency. With respect to the case against FRED DE GUZMAN, the records of the case insofar as he is concerned is hereby ordered ARCHIVED to be revived upon his arrest when he may be heard to answer for the offense charged." On 11 May 1989, accused-appellant filed his Notice of Appeal, manifesting therein that he was appealing the decision to this Court. 10 However, in the Order of 11 May 1989, Judge Cipriano de Roma erroneously directed the transmittal of the records of the case to the Court of Appeals. 11 The Court of Appeals transmitted to this Court on 4 March 1989 the records which were erroneously transmitted to it. 12 In this appeal accused-appellant assigns only one error: THE TRIAL COURT ERRED IN NOT APPLYING THE INDETERMINATE SENTENCE LAW THAT FAVORS THE ACCUSED APPELLANT. 13 He is thus deemed to be in complete agreement with the findings and conclusion of facts by the trial court which We quote:

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"The evidence adduced by the prosecution more than prove with moral certainty the guilt of the accused Benedicto Dapitan for the crime of ROBBERY WITH HOMICIDE. While there may be no direct evidence linking the accused to said crime, the witnesses who testified more than fully satisfy the requirements for conviction on the basis of circumstantial evidence, because it affords enough basis for a reasonable inference of the existence of the fact thereby sought to be proved, that the accused performed the criminal act. Orencia Amil, principal witness for the prosecution testified that at around 8:30 in the morning of May 16, 1986, she left for her farm which was about 50 meters away, leaving behind in her house his adopted son Rolando (the victim) very much alive. (TSN, page 5, hearing of August 24, 1987) who refused to go with her because he chose to play in the house instead; and that because she heard the barking of her dog which aroused her suspicion, she immediately returned and saw the accused Benedicto Dapitan and his co-accused Fred de Guzman passing through her fence (TSN, pp. 5-6, hearing of August 24, 1987); and that when she entered her house calling her child's name, and seeing the backdoor open, she entered and saw Rolando's body sprawled on the floor and his brain "scattered". Near his body was a piece of wood, also bloodied. Thinking her son to be still alive she took her in her arms, placed him on the table and that was the time she realized he was dead. (TSN, pages 6-7, hearing of Aug. 24, 1987). She likewise testified that she lost two watches worth P1,180; pants at P250.00 and cash amounting to P75.00; and after her son's burial she further found that her child's toy worth P500.00, a flashlight and a bolo worth P45.00 and P120.00, respectively, were missing. (TSN, pages 8-9, hearing of August 24, 1987). Orencia Amil's testimony is likewise corroborated on its material points by the testimony of Celo Nilo, another prosecution witness. He testified that between the hours of 8:00 to 9:00 in the morning of May 16, 1986, he saw two persons entering the house of Mrs. Orencia Amil, one of whom he identified as Benedicto Dapitan, (TSN, pages 4-5, hearing of October 26, 1987). He positively identified Benedicto Dapitan who was in Court (TSN, pages 5-6, hearing of October 26, 1987). He likewise testified that when the two suspects entered the house of Mrs. Amil, he heard the voice of a child. In the statement he gave the police investigators (Exhibit B) which he confirmed when he testified, pertinent portions of which are herein quoted, he said: xxx xxx xxx T Noong May 16, 1986, sa pagitan ng ika 8:00 ng umaga, natatandaan mo ba noon kung saan ka naroroon? S Ako po ay galing sa aming bahay at ako po ay patungo sa bundok para magtanim po ng punong saging. xxx xxx xxx T Noong ikaw ay papadaan sa malapit sa bahay in Orencia Amil, wala ka bang napansin na tao na nagtungo doon sa kanilang bahay? S Mayroon po. T Nakilala mo ba naman kung sinong tao ang iyong nakita na dumaan doon sa bahay nina Mrs. Orencia Amil? S Iyon lang pong isang tao ang aking kilala na dumaan doon sa bahay nina Mrs. Orencia Amil na si Benny Dapitan na ang tirahan po ay doon po rin sa Sitio Tabak, Brgy. San Rafael, R/R, pero iyon pong isa na kasama in Benny Dapitan ay hindi ko po kilala sa kanyang tunay na pangalan. T Ilan bang tao ang iyong nakita na nagpunta doon sa bahay in Mrs. Orencia Amil? S Dalawang tao po.

148 T Mayroon ka ba gaano kalayo doon sa dalawang tao na ang isa ay si Benny Dapitan ng sila ay makita mo na pumunta doon sa bahay ni Mrs. Orencia Amil? S Mayroon po lamang na mga 10 metro ang aking layo sa kanila. T Matapos na makita mo si na si Benny Dapitan at iyong isa niyang kasama ay pumasok doon sa bahay, ano pa ang sunod na pangyayari? S Akin pong nakita na matapos na sila ay makapasok sa loob ng bahay ni Mrs. Amil ay kanila pong isinara iyong pintuan noong bahay, at hindi ko po naman sila pinansin at ako po ay nagpatuloy na sa aking pupuntahan. xxx xxx xxx T Matapos na makapasok iyong sina Benny Dapitan doon sa bahay, wala ka ba namang narinig na sigaw ng isang bata? S Mayroon po pero hindi ko po pinansin. (Emphasis supplied). xxx xxx xxx The testimonies of these two witnesses, evaluated together, on what transpired in the morning of May 16, 1986, between the hours of 8:00-9:00 a.m. attest to the existence of the following facts: 1. That the victim, Rolando Amil, was alive when her mother left her as testified to by Orencia Amil and witness Celo Nilo, who cry out when the two suspects entered the house. (Testimony of Orencia Amil) 2. That the accused Benedicto Dapitan and an unidentified companion entered the house at a time when Mrs. Amil had already left, and that the victim, at the time, was still alive. (Testimonies of Celo Nilo & Orencia Amil) 3. That when Mrs. Amil returned at quarter to nine she saw Benedicto Dapitan and Fred de Guzman leaving the premises. (Testimony of Orencia Amil) 4. And that when Mrs. Amil entered her house, the victim, Rolando Amil, was already dead. (Testimony of Orencia Amil). As gleaned from the records, witness Orencia Amil was straightforward in her testimony. She remained steadfast even on cross-examination, and there is nothing on record concerning her testimony which would leave the court in doubt as to the truth of what she testified to. Her testimony therefore, relative to the circumstances transpiring at the time she left the house at 8:30 a.m. up to the time she returned at quarter to nine engenders belief. Celo Nilo's testimony was likewise made in the same vein as that of Orencia Amil. This witness was not shown to have cause to perjure himself on a serious crime against the accused. As the Court observed during the trial, his testimony, based on his demeanor when he testified, is impressed with a ring of veracity. The Court did not give credit to the testimony of Patrolman Rodolfo Rivera except on the fact that he conducted an investigation. No value whatsoever was given to the sworn statement of Benedicto Dapitan, even as to the portion in said testimony, where Benedicto Dapitan admitted being present when Fred de Guzman allegedly hit the victim on the head and that the stolen articles were in the possession of Fred de Guzman, because as wisely put by defense counsel, the sworn statement was taken in violation of the constitutional rights of the accused. In sum, therefore, there can be no other inference from the evidence presented by the prosecution considering the short span of time the victim Rolando Amil was left alive by his mother, and her return fifteen (15) minutes later to find him dead and the testimony that the accused was seen entering and leaving the premises

149 during this intervening period, except the inevitable conclusion that the accused is responsible for the death of Rolando Amil. For his part, the accused Benedicto Dapitan interposes the defense of "alibi". This, he sought to establish through the testimony of witness Ismael Anacio. Pertinent portion of the witness' testimony, is herein quoted, to wit: xxx xxx xxx Q Now, do you remember, Mr. Witness, if this Benedicto Dapitan was present in the said house on the period from May 16 to May 19, 1986? A He was there, sir. Q Was there any occasion when this Benedicto Dapitan left your house during that period? A None, sir. (TSN, pages 3-5, hearing of September 12, 1988). The testimony of witness Ismael Anacio, a salesman by occupation, that defendant Benedicto Dapitan, from May 16 to May 19, 1986, was in his house all the time, and that there was no occasion that he left the place during this period does not spark belief. In the first place, the witness wants the Court to believe that he was in his house during all the time so that he could during all the days alluded to, be in a position to be positive as to the whereabouts of the accused. This circumstance alone generates doubt on his testimony, because it was not explained why the witness, a salesman by occupation, would be in his house from the period beginning May 16-19, 1986 (TSN, pages 2-3, hearing of September 12, 1988). Assuming though, for the sake of argument, that the witness actually monitored the whereabouts of the accused during all the time, his testimony sustaining Benedicto Dapitan's defense of "alibi" cannot defeat the positive identification made of Benedicto Dapitan and of his presence in Montalban on May 16, 1986, by witness Orencia Amil and Celo Nilo. Even on this score alone, without taking into consideration that Sampaloc District where he allegedly was, is geographically not so far from Montalban, from where he could have commuted through the ordinary means of transportation present in the area, his defense of "alibi" naturally falls, so that his conviction is reasonably called for." 14 In support of the assigned error accused-appellant argues that the imposition over him of the penalty of reclusion temporal by the trial court is "tantamount to deprivation of life or liberty without due process of law or is tantamount to a cruel, degrading or inhuman punishment prohibited by the Constitution" and he submits that "the righteous and humane punishment that should have been meted out should be indeterminate sentence" with "all mitigating circumstances as well as the legal provisions favorable to the accused-appellant . . . appreciated or . . . taken advantage for constructive and humanitarian reasons." He stresses that since mitigating circumstances are based on, among others, the lesser perversity of the offender, such should be appreciated in his favor since he had "a companion then when he entered Mrs. Orencia Amil's house and perpetrated the offense. 15 And it was his companion or mate by the name of Fred de Guzman who took the personal belongings of Mrs. Amil as the men's watch worth P1,188.00. It was Fred de Guzman who is still at large who stabbed and hit the head of Rolando Amil. 16 These facts or circumstances reveal that accused-appellant had a "lesser perversity than his companion Fred de Guzman." As evidence of such lesser perversity, "he did not flee or hide himself from the authorities. . . . within two (2) days' time he surrendered voluntarily to the police authorities . . ." Thus, the "mitigating circumstance of voluntary surrender must be considered" in his favor. 17

150

He prays that he be sentenced to an indeterminate penalty ranging from twelve (12) years and one (1) day of reclusion temporal, as minimum, to reclusion perpetua as maximum. 18 Meeting squarely the points raised by the accused-appellant, the People, in the Brief for Plaintiff-Appellee submitted by the Solicitor General on 9 June 1990, asserts that the same are without merit for the accused was not deprived of due process as he was, as admitted by him, afforded full opportunity to be heard; for a penalty to be cruel, degrading or inhuman, "it must take more than merely being harsh, excessive, out of proportion, or severe . . .; it must be flagrantly and plainly oppressive, disproportionate to the nature of the offense as to shock the moral sense of the community 19 or when they involve torture or lingering death" 20 and since the penalty of reclusion perpetua imposed on him is sanctioned by law, Act No. 3815 as amended, otherwise known as the Revised Penal Code, said penalty is not cruel, degrading or inhuman. It further argues that the special complex crime of robbery with homicide defined under Article 294, par. 1, of the Revised Penal Code is punishable with reclusion perpetua to death; with the abolition of the death penalty by the 1987 Constitution, the only penalty imposable upon a person found to have committed such complex crime is the single penalty of reclusion perpetua, which is an indivisible penalty. Under Article 63 of the Revised Penal Code it should be applied regardless of the presence of any mitigating or aggravating circumstances. As regards the Indeterminate Sentence Law, the People submits that the accusedappellant cannot avail of it since Section 2 of the law (Act No. 4103) specifically provides that it shall not apply to, among others, persons convicted of offenses punished with death penalty or life imprisonment. We find the instant appeal to be totally bereft of merit. There was no denial of due process. Due process is satisfied if the following conditions are present: (1) there must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired by it over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing. 21 In People vs. Castillo, et al., 22 We ruled that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with opportunity to be heard, and a judgment awarded within the authority of the constitutional law, then he has had due process. 23 We reiterated the above doctrine in People vs. Muit. 24 All the requisites or conditions of due process are present in this case. The records further disclose that accused-appellant was given the fullest and unhampered opportunity not only to reflect dispassionately on his expressed desire to plead guilty to a lesser offense which prompted the court to cancel the hearing of 10 February 1987, but also to confront the witnesses presented against him and to present his own evidence. llcd

151 If indeed accused-appellant had been deprived of due process, he would have faulted the trial court not just for failure to apply the Indeterminate Sentence Law, but definitely for more. Yet, he found it futile to go any farther. Neither is the penalty of reclusion perpetua cruel, degrading, and inhuman. To make that claim is to assail the constitutionality of Article 294, par. 1 of the Revised Penal Code, or of any other provisions therein and of special laws imposing the said penalty for specific crimes or offenses. The proposition cannot find any support. Article 294, par. 1 of the Revised Penal Code has survived four Constitutions of the Philippines, namely: the 1935 Constitution, the 1973 Constitution, the Freedom Constitution of 1986 and the 1987 Constitution. All of these documents mention life imprisonment or reclusion perpetua as a penalty which may be imposed in appropriate cases. 25 As a matter of fact, the same paragraph of the section of Article III (Bill of Rights) of the 1987 Constitution which prohibits the imposition of cruel, degrading and inhuman punishment expressly recognizes reclusion perpetua. Thus: "Section 19(1). Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall the death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides it. Any death penalty already imposed shall be reduced to reclusion perpetua. As to the appreciation of mitigating circumstances, We also agree with the Solicitor General that since robbery with homicide under paragraph 1 of Article 294 of the Revised Penal Code is now punishable by the single and indivisible penalty of reclusion perpetua in view of the abolition of the death penalty, it follows that the rule prescribed in the first paragraph of Article 63 of the Revised Penal Code shall apply. 26 Consequently, reclusion perpetua must be imposed in this case regardless of the presence of mitigating or aggravating circumstances. The trial court correctly imposed on the accused the penalty of reclusion perpetua. The civil indemnity awarded by the trial court should, in line with Our decision in People vs. Sison, G.R. No. 86455, 14 September 1990, and People vs. Sazon, G.R. No. 89684, 18 September 1970, be increased from P30,000.00 to P50,000.00. WHEREFORE, except as modified above in respect to the civil indemnity, the decision appealed from is AFFIRMED in toto, with costs against accusedappellant. SO ORDERED.

[G.R. No. L-55346. November 13, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS SALDIVIA, accused-appellant. DECISION Appellant was indicted for the crime of rape before Branch III of the then Court of First Instance (now Regional Trial Court) of Aklan in an Information which was filed on 24 November 1973 and docketed as Criminal Case No. 394. The accusatory portion thereof reads: "That on or about 3:00 o'clock in the afternoon of July 2, 1973, at Barrio Julita, Municipality of Libacao, Province of Aklan, Republic of the Philippines, and

152 within the jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation and against the will of the offended party, CONRADA Z. SABAY, did then and there willfully, unlawfully, and feloniously have sexual intercourse with the latter. CONTRARY TO LAW. 1 The Information is based on a sworn complaint filed by the offended party on 20 July 1973 before the then Municipal Trial Court of Libacao, Aklan. 2 Upon arraignment on 20 March 1974, appellant entered a plea of not guilty. 3 After trial on the merits, the lower court 4 promulgated on 19 October 1977 a decision 5 finding the appellant guilty beyond reasonable doubt of the crime charged and sentenced him: " . . . to a penalty of TEN (10) YEARS of prision mayor to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal with costs against accused." Appellant appealed from the said decision to the Court of Appeals 6 which docketed the case as C.A.-G.R. No. 21824-CR. LLpr In his Brief 7 filed on 11 July 1978 with the Court of Appeals, appellant submitted the following errors: "I. The lower court erred in finding the accused guilty beyond reasonable doubt of the crime of rape through the use of force. LexLib II. The lower court erred in giving credence to the testimony of the offended party and her witnesses." The People, in its Brief 8 filed by the Solicitor General on 13 December 1978, maintained that the guilt of the appellant for the crime charged was proved beyond reasonable doubt but asserted, however, that the trial court erred in applying the Indeterminate Sentence Law and in imposing upon appellant the penalty of 10 years of prision mayor to 14 years, 8 months and 1 day of reclusion temporal. Under Article 335 of the Revised Penal Code, simple rape is penalized by the single indivisible penalty of reclusion perpetua, which shall be applied regardless of any mitigating or aggravating circumstance that may have attended the commission of the offense. 9 Accordingly, appellant cannot enjoy the benefits of the Indeterminate Sentence Law. 10 It then recommended that the case be sent and certified to this Court for resolution pursuant to Sections 17 and 31 of the Judiciary Act, as amended, and Section 3, Rule 50 in relation to Section 17, Rule 124, and Section 1, Rule 125 of the Rules of Court. On 18 September 1980, the Court of Appeals, per then Justice Emilio A. Gancayco, 11 who later became an Associate Justice of this Court, rendered judgment therein affirming the decision of the trial court convicting appellant for the crime of rape, but ruling, however, that the penalty to be imposed should be reclusion perpetua, and, conformably with the ruling in People vs. Daniel, 12 People vs. Ramos, 13 and People vs. Trava, 14 it did not enter the judgment but certified the case to this Court for review. The action taken by the Court of Appeals is in compliance with the second paragraph, Section 13, Rule 124 of the Rules of Court which provides:

153

"Whenever the Court of Appeals should be of the opinion that the penalty of reclusion perpetua or higher should be imposed in a case, the court after discussion of the evidence and the law involved, shall render judgment imposing the penalty of reclusion perpetua or higher as the circumstances warrant, refrain from entering judgment and forthwith certify the case and elevate the entire record thereof to the Supreme Court for review. (12a)." The full decision of the Court of Appeals (caption omitted) reads as follows: "Gancayco, J.: This is an appeal from a judgment of the Court of First Instance of Aklan convicting the accused-appellant of the crime of rape and imposing upon him the penalty of TEN YEARS (10) of prision mayor to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal, with costs against the accused-appellant. The assigned errors allegedly committed by the trial court are as follows: 'I THE LOWER COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE THROUGH THE USE OF FORCE. II THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE OFFENDED PARTY AND HER WITNESSES.' cdphil For the prosecution Conrada Sabay testified that on July 2, 1973, at about 3:00 o'clock in the afternoon while she was at home in Barrio Julita, Libacao, Aklan, lying down and feeding her baby, the appellant came to the house and asked her where husband Donato Sabay was and she informed him that he was not around. Appellant then went inside the room, sat on the bed and held the face of her baby. After this the appellant held her nipple and she brushed his arm aside. He held both of her shoulders and pinned her down placing himself on her top. The appellant unzippered his pants and had his penis out and he raised her dress (duster) up. She boxed him with her two hands and brushed him aside and she shouted, as he raised her dress, coupled with a blow on his body. As she shouted twice he took the pillow and covered her mouth and did a push and pull movement. She struggled hard to stand up and the penis of the appellant was not able to penetrate her vagina because she was struggling although it was touching her vagina. The appellant knelt on her thigh and pinned down the pillow that was covering her mouth so she lost consciousness. And when she regained consciousness the appellant was still doing the push and pull movement and his penis was able to penetrate her vagina. It was at that moment when Agripina Icutan arrived who asked (sic) her what happened to her. As Agripina was already climbing the ladder the appellant immediately stood up and jumped out of the window. Agripina went inside the room and she looked outside the window. She asked the complainant why she was crying and complainant told her that she was forced by the appellant. At 5:00 o'clock in the afternoon her husband arrived and then she told him that she was forced by the appellant. Her husband looked for the appellant around the house and when he failed to find the appellant he reported the matter to the Barrio Captain the following day (tsn., March 26, 1975, pp. 3543). The complainant is corroborated by Agripina Icutan who stated that at around 3:00 o'clock of July 2, 1973 while she was at the ricefield at Barrio Julita, about

154 50 arms stretch from the house of Conrada Sabay, she heard a baby crying so she went up to Sabay's house but upon reaching the stairs she saw Dioscoro Zaballero peeping at one side of the house out of the room. When the appellant jumped out she scolded him. She asked the complainant why she was crying and complainant told her that she was forced by the appellant by being made to lie down the (sic) floor with her face upward, her mouth was pinned with a pillow, and her two shoulders were pinned down on the floor. Complainant also told her that appellant was able to abuse her and she was even warned to keep quiet otherwise she will be in danger (tsn., June 27, 1974, pp. 2-5). Dioscoro Zaballero also testified that on that fateful day, he went to the house of Conrada Sabay at Barrio Julita, when he heard then complainant crying and so he went to the corner of the house and peeped and he saw the appellant on top of the complainant who was continuously boxing him as he did the push and pull movement. Then Agripina Icutan, the mother-in-law of the complainant, arrived who (sic) asked Dioscoro why he was there and he told her to go up and see what happened. As Agripina went up, the appellant jumped out of the house through the window. He pulled up his trousers, and ran away towards his home down the stream which is over one (1) kilometer away. After this incident he went to the place where the nipa thatches are which he bought from Sabay which he tied and brought home (tsn., Feb. 4, 1975, pp. 2-5). On the other hand the appellant testifying in his defense, stated that on July 2, 1973, at about 3:00 o'clock in the afternoon he went to the house of the complainant to inquire about the status of the mountain land he acquired from Donato Sabay, husband of the offended party. The land was verbally sold to him in 1967 for P200.00 after which he possessed the land. As there was no document covering the sale he went to their house to ask that it be documented. Therein he found the offended party and Agripina Icutan. He seated (sic) on the bench of the balcony of the house staying there for about half an hour to wait for Donato Sabay, as the offended party told him that her husband was at his work. He denied having sexual intercourse with the offended party much less that he was armed at the time. Before the incident, that is on June 27, 1973 he went to see Donato Sabay when he talked to him about the proposed instrument covering the sale of the land but Donato was not agreeable and was even angry. So he file (sic) a complaint with the Aklan PC Provincial Command on September 10, 1973 (Exh. 5). Dioscoro Zaballero testified against him because one Fiscal Arrieta mortgaged a land to him and he drove out Dioscoro Zaballero as overseer of said land because he was abusing it by cutting down the coconut trees and palms. The mortgage of the land is shown by letter he sent to the late Fiscal Arrieta (Exhs. 6 & 7). The consideration of the mortgage was P1,200.00 (tsn., Sept. 13, 1975, pp. 68-76). LLjur Appellant argues that as the offended party failed to submit herself to medical examination thus the prosecution failed to establish the alleged sexual intercourse. Suffice it to state here that the offended party and her husband are simple and uneducated people who are not expected to know the evidentiary value of such a medical examination. (tsn., April 3, 1975, p. 60) As a matter of fact when they learned of the need for such an examination, on July 6, 1975 she went to the Aklan Provincial Hospital for the purpose, but due to the length of time that elapsed, no sign of sexual intercourse of (sic) force inflicted could be found (tsn., March 1, 1975, p. 21). Nevertheless such a medical examination of the victim is not indispensable in a prosecution for rape. In the case of People v. Selfaison, 1 SCRA 235, 242, it was held 'In fact, it is not even necessary that there be a medical examination of the victim in cases of rape. Whether or not the charge will prosper depends upon the

155 evidence offered and so long as such evidence convinces the court, a conviction for rape is proper.' The appellant's theory is that, even assuming he had sexual intercourse with the offended party, it was committed by appellant with her consent, citing paragraph 4 of the sworn statement of the offended party of July 20, 1973 before the Municipal Judge of Libacao, Aklan (Exh. 2). Far supporting the theory of appellant, said portion of the statement show (sic) that the appellant tried to force his attention on the offended party. As she resisted, he placed a pillow over her mouth and pressed her by the shoulder placing himself on her top by pressing down her two legs and inserting his penis in her vagina. Indeed, in the other portions of the same statement the offended party stated that the appellant even threatened her to keep quiet or something will happen to her and that she could not shout because her mouth was covered with a pillow (pars. 5 & 8, Exh. 2). While it is true that at the time the appellant went inside the room of the offended party she was breast feeding her baby she must have put down the baby to resist the advances of the appellant who started to touch her nipple and not as surmised by the appellant that she voluntarily put aside her baby at the moment. The appellant also pointed out alleged material contradictions between the testimony of the offended party and her sworn statement (Exh. 2). While in her sworn statement she never alleged she lost consciousness in her testimony she stated otherwise. The omission of this fact in her sworn statement does not detract from the fact that she actually lost consciousness. Suffice it to say that affidavits, being ex parte are almost always incomplete and often inaccurate (People v. Pacala, 58 SCRA 370; People v. Jovellano, 56 SCRA 156). Another alleged contradiction is that while the complainant testified she shouted twice in her sworn statement she said she was not able to shout as her mouth was covered with a pillow there is no contradiction in this aspect. She testified that she shouted so the appellant covered her mouth with a pillow when (sic) obviously she could not shout anymore. At any rate, the issue boils down to the matter of credibility of witnesses and the traditional rule is that it is the province of the trial court to determine the credibility of witnesses because of its superior advantage of observing the conduct and demeanor of the witnesses while testifying on the witness stand, and that on appeal its findings shall not be disturbed unless some fact or circumstance may have been overlooked that may otherwise affect the result of the case. We find no reason to disturb the findings of the trial court in this issue. However, the penalty imposed by the court a quo is incorrect. Since the prosecution has established that the crime of rape has been committed then the imposable penalty shall be reclusion perpetua in accordance with Article 335 of the Revised Penal Code. Under Section 2, of Act 4103 as amended by Act 4225, known as the Indeterminate Sentence Law, the said law shall not apply to persons convicted of offenses punished by death or life imprisonment. Under Article 63 of the Revised Penal Code, it provided as follows: LLphil 'ART. 63. Rules for the application of indivisible penalties. In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed.' Thus the penalty that should be imposed for the offense should be reclusion perpetua.

156

Since under Section 5, (2) paragraph d, Article 10 of the Constitution, the Supreme Court has exclusive jurisdiction to review all criminal cases where the penalty imposed is death or life imprisonment, although this Court must render a judgment imposing the capital penalty based on the evidence, it should not enter the judgment but certify the case to the Supreme Court for review (People v. Daniel, 86 SCRA 532-540; People v. Ramos, 88 SCRA 486; People v. Traya, 89 SCRA 274). WHEREFORE, the judgment appealed from is hereby affirmed convicting the accused of the crime of rape with the modification that the penalty imposed is reclusion perpetua, with costs against accused-appellant. However, this judgment shall not be entered and the records of this case are hereby elevated to the Honorable Supreme Court for review as a matter within its exclusive appellate jurisdiction. SO ORDERED 15 The case was docketed in this Court as G.R. No. 55346 and was declared submitted for decision on 27 October 1980. 16 However, Atty. Alejandre S. Bonifacio, who entered his appearance as collaborating counsel for appellant, filed on 21 April 1981 a motion for leave to file a supplemental brief for the appellant, 17 which this Court granted on 13 May 1981. 18 In the Supplemental Brief, 19 which was filed on 19 May 1981, appellant attributes to the trial court the following errors: "I. The lower court committed an error in finding rape (sic) was committed. II. The lower court committed an error in not sustaining the defense claim of sufficient motive on the part of the complainant to concoct this charge. III. The lower court committed an error in its findings that the guilt of the accused was proven beyond reasonable doubt." In the review of rape cases, this Court has consistently adhered to the following established principles: a) an accusation of rape can be made with facility; it is difficult to prove, but more difficult for the person accused, though innocent, to disprove; b) in view of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and c) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense. 20 Conviction for such a crime should not be sustained without clear and convincing proof of guilt. 21 For, as We said in the recent case of People vs. Pido, 22 under our democratic system of Government, a mere accusation is not synonymous with guilt. 23 Every accused is presumed innocent until the contrary is proved; that presumption is solemnly guaranteed by the Bill of Rights. 24 The contrary requires proof beyond reasonable doubt, or that degree of proof which produces a conviction in an unprejudiced mind; 25 short of this, it is not only the right of the accused to be freed; it is, even more, the constitutional duty of the court to acquit him. 26 It is, nevertheless, an equally settled principle that when a woman says that she has been raped, she says in effect all that is necessary to show the rape had been committed and that if her testimony meets the test of credibility, the accused may be convicted on the basis thereof. 27 The reason for this is that a rape victim would not publicly disclose that she had been raped and would not undergo the troubles and humiliations of trial if her motive was not to bring to justice the person who had abused her. 28 We have carefully examined the records in this case, painstakingly read the transcript of the stenographic notes of the testimonies of the witnesses of both the

157 prosecution and the defense, and judiciously weighed the evidence. We are in full accord with the findings and conclusion of the Court of Appeals and, therefore, We do not hesitate to affirm its decision. The evidence for the prosecution conclusively established all the elements of the crime of rape. Appellant had carnal knowledge of the complainant against her will and through force. As found by both the trial court and the Court of Appeals, sufficient force was used by appellant. The latter, however, contends that, granting for the sake of argument that there was force, it was not irresistible. The rule is well-settled that the force employed in rape need not be irresistible, as long as it is present and brings the desired result; 29 all that is necessary is that the force used by the accused is sufficient to consummate his evil purpose, 30 or that it was successfully used. 31 It need not be so great or of such a character that it could not be repelled. 32 In his main brief, appellant bases his assertion of absence of force on the mere failure of complainant to submit herself to a medical examination after the incident. 33 However, as correctly ruled by the Court of Appeals, a medical examination is not indispensable in a prosecution for rape. 34 We find no rule of evidence which imposes such a requirement. Were it so, grave and irreparable injustice would be inflicted upon hapless victims of the most detestable crime committed in remote areas of the country where no doctors who could conduct the medical examination immediately after the commission of the crime would be available. We are not likewise unmindful of the fact that it is with the utmost reluctance that a victim of rape submits herself to a medical examination immediately after the commission of the crime for, in many instances, what preoccupies her mind is not the filing of a complaint but rather the fear of what the assailant would further inflict upon her by a revelation of her harrowing experience, or the embarrassment and humiliation that a trial would visit upon her as she publicly bares the ignominy undergone which would forever affect her honor and reputation. The second assigned error in the Supplemental Brief is a delayed after-thought. In his main brief, appellant did not even intimate that the trial court erred in not sustaining the defense claim of sufficient motive on the part of the complainant to concoct the charge. The basis for this claim is the alleged land dispute between appellant and the family of the Sabays which, according to the former, "was more than sufficient motive on the part of the Sabays to concoct this charge." The testimony of the appellant both on direct examination 35 and on crossexamination 36 fails even to remotely suggest such a conclusion. Moreover, as correctly ruled by the trial court: " . . . While the Court finds that there exists bad blood between the accused and Donato Sabay, to the mind of the Court such a circumstance could not give rise to a fabrication of the charge of rape in which the person of the offended party, her honor and good name would be subject to ridicule and contempt by the people who might fear her having been ravished by another man. And much more, a husband in his right senses would hardly allow that to happen to his wife. The differences existing between the accused and Donato Sabay was (sic) nevertheless settled at Camp Martelino by the Philippine Constabulary authorities to (sic) whom the accused, the records show, had filed a complaint against Donato Sabay after a complaint of rape was filed against the accused. Donato Sabay had paid the accused, it was a pure indebtedness." prcd The suggestion of appellant that complainant was used by her husband to exact vengeance on appellant is entirely unacceptable, not only because it is pure

158 speculation, but also because it is so unnatural. It makes a mockery of the sanctity of the relationship of husband and wife in an inviolable social institution, the Filipino family, and of the traditional high regard and respect the Filipino male has for his wife. Finally, and in relation to the third assigned error in the Supplemental Brief, the testimonies of the prosecution witnesses Dioscoro Zaballero and Agrifina Icutan were not indispensable to prove the commission of the crime of rape in this case. In short, their testimonies may even be disregarded, for the testimony of the complainant is sufficient enough to produce conviction in an unprejudiced mind. We finally rule that the award of moral damages, which neither the trial court nor the Court of Appeals granted, is in order. Rape necessarily brings to the victim mental anguish, fright, serious anxiety, besmirched reputation, moral shock, and social humiliation. Accordingly, We award to the complainant the sum of P30,000.00 as moral damages. WHEREFORE, judgment is hereby rendered AFFIRMING the decision of the Court of Appeals in C.A.-G.R. No. 21824-CR which finds the appellant JESUS SALDIVIA guilty of the crime of Rape and imposes upon him the penalty of reclusion perpetua, with the modification that he is further ordered to pay to the offended party, CONRADA SABAY, the sum of P30,000.00 as moral damages. Costs against the appellant. IT IS SO ORDERED.

[G.R. No. 101844. November 18, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENEDICTO CRUZ Y MACALALAD, accused-appellant. DECISION The accused-appellant Benedicto M. Cruz questions the decision of the Regional Trial Court, Branch 152, Pasig, Metro Manila which found him guilty beyond reasonable doubt of the crime of robbery with rape and sentenced him to an indeterminate penalty of imprisonment from Twelve (12) Years of prision mayor, maximum to Seventeen (17) Years of reclusion temporal medium, and to indemnify the victim in the sum of Ten Thousand Pesos (P10,000.00) for moral damages and One Thousand One Hundred Twenty Pesos (P1,120.00) for the value of the property which was taken. The appeal was originally raised to the Court of Appeals. The Court of Appeals affirmed the judgment of conviction but modified the penalty. Appellant Cruz was found guilty of two (2) crimes: First for rape, where he was sentenced to reclusion perpetua, and second for robbery, where he was sentenced to an indeterminate penalty of Six (6) Months and One (1) Day of prision correccional as minimum to Six (6) Years and One (1) Day of prision mayor as maximum. cdrep Following the rule found in Section 13, paragraph 2 of Rule 124 of the Rules of Court and the precedents set in People v. Daniel (86 SCRA 511 [1978]), People v. Ramos (88 SCRA 486 [1979]) and People v. Traya (89 SCRA 274 [1979]) that when the penalty of reclusion perpetua or higher is imposed in a case, the Court of Appeals after discussing the evidence and the law involved, shall render judgment imposing the penalty, refrain from entering judgment and forthwith certify the case and elevate the entire records thereof to the Supreme Court for review.

159 The decision of the Court of Appeals reads as follows: "Accused Benedicto M. Cruz (Benedicto for brevity) appeals from the Decision dated February 5, 1990 of the Regional Trial Court, Branch 162, at Pasig, Metro Manila, convicting him of the crime of Robbery with Rape defined and penalized under Article 293 in relation to Art. 294 of the Revised Penal Code as amended by Presidential Decree No. 767. STATEMENT OF THE CASE On February 13, 1989, Benedicto was accused of the crime of Robbery with Rape in an Information reading as follows: "That on or about the 31st of January, 1989 in the municipality of Marikina, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with the intent of gain and by means of violence and intimidation, did, then and there wilfully, unlawfully and feloniously take, steal and carry away the following items, to wit: 1. 2. 3. One (1 ) Citizen wrist watch P350.00 One Gold necklace with cross pendant 'Cash money 120.00 P1,120.00 450.00

with the total amount of P1,120.00, belonging to one Ana Esconde y Omogowog, to the damage and prejudice of the said Ana Esconde y Omogowog in the aforesaid amount of P1,120.00; that on the occasion of the said robbery, the accused by means of violence and (sic) wilfully, unlawfully and feloniously have carnal knowledge upon the person of said Ana Esconde y Omogowog against her will. Contrary to law. (p. 1, Record)' On February 5, 1990, the trial court convicted Benedicto of the crime charged in the above information. The dispositive portion of the trial court's decision reads as follows: 'WHEREFORE, premises considered, the Court finds the accused Benedicto M. Cruz GUILTY beyond reasonable doubt of the crime of robbery with rape defined and punished under Article 293 in relation to paragraph 2, Article 294 of the Revised Penal Code as amended by PD No. 767 without any mitigating nor aggravating circumstance attendant thereto and after applying the Indeterminate Sentence Law, sentences him to suffer imprisonment from TWELVE (12) YEARS of prision mayor, maximum to SEVENTEEN (17) YEARS of reclusion temporal medium, to indemnify the victim Ana Esconde, P10,000.00 as moral damages, and to pay the sum of P1,120.00 value of the property taken, without subsidiary imprisonment in case of insolvency, and to pay the cost. SO ORDERED. (pp. 7-8, RTC Decision, . . .) Hence, this appeal wherein Benedicto assigned the following errors: 'I THE COURT A QUO ERRED WHEN IT CONVICTED THE ACCUSED OF ROBBERY WITH RAPE, WHEN ACTUALLY THERE WAS NEITHER RAPE, NOR ROBBERY.

160 II THE COURT A QUO ERRED WHEN IT BELIEVED THE COMPLAINANT THAT THE RAPE WAS CONSUMMATED INSIDE THE COMFORT ROOM WHEN THE PLACE AND THE POSITIONS AND CIRCUMSTANCES AS TOLD BY THE COMPLAINANT, THE SEXUAL ACT COULD NOT HAVE BEEN PHYSICALLY DONE. III THE COURT A QUO ERRED WHEN IT SAID THAT THE TAKING OF THE PERSONAL PROPERTIES WAS NOT DISPUTED BY THE DEFENSE. IV THE COURT A QUO ERRED IN QUOTING MANY UNFACTUAL FACTS OF THE CASE WHICH GIVES DOUBTS AS TO ITS HONEST AND ACCURATE EVALUATION OF THE EVIDENCE TO IT. prcd The issues raised in the above assignment of errors boil down to whether or not, under the facts and circumstances established by the evidence, Benedicto is guilty of the Special Complex Crime of Robbery with Rape, a joint discussion of these assignment of errors is warranted. An accusation for rape can easily be made because the nature of the crime is such that its veracity is difficult to prove or disprove. In such an offense where it is usually only the accused and his victim who can testify as to its occurrence, conviction or acquittal hinges almost solely upon the credibility of the witnesses (see People v. Lucas, G.R. No. 80102, January 22, 1990). The Supreme Court was more emphatic on this in People v. David (G.R. No. 72355-59, Sept. 15, 1989): 'Ang kasalanang panggagahasa ay totoong mahirap patunayan sapagkat ang karaniwang nakakaalam lamang nito ay ang pinagsamantalahan at ang nagsamantala. Samakatuwid, hindi inaasahan na mayroon pang ibang makapagpapahayag ng pangyayari. Hindi pangkaraniwan na ang salang ito ay nagaganap ng may saksi. Sa ganitong dahilan ang hukuman ay umaasa sa katapatan ng pahayag ng nagsusumbong at tinitimbang ito laban sa pagtanggi o pagpapasinungaling ng inuusig (see People v. Barranco, G.R. No. 58847, August 31, 1989).' In the case at bar, the court a quo found 'no room to doubt the credibility of the complainant and her version of the incident.' It expressed in its assailed Decision that Ana's testimony is 'positive and sufficient to justify a conviction.' We concur with the trial court's deduction not only because it was in a better position to observe the witnesses' demeanor and manner of testifying so much so that its findings on the credibility of the witnesses are entitled to great weight (see People v. Patola, 141 SCRA 401), but also because after scrutinizing and evaluating the testimony of the complaining witness as transcribed in the transcript of stenographic notes, We find her firm and straightforward in her answers to the incisive interrogations of the defense. This, despite the fact that she was observed by the defense to be visibly pregnant at the time they grilled her on stand. Her testimony is clear and cohesive, free from any serious contradictions. She was unwavering in her identification of Benedicto as her defiler, to wit: 'On January 28, 1989, she got married in Bicol (TSN, August 30, 1989, p. 3). After spending two days there, she and her spouse, together with her sixteen year old nephew, returned to Manila on January 31, 1989. It is her nephews first time

161 to come to Manila. He still does not know how to speak Tagalog. They reached the city at around 9:00 o'clock A.M. of the same day (p. 9). Upon their arrival in their two-storey apartment, her husband went to work, leaving her and her nephew in their apartment. After her husband left their apartment, she locked its main door (p. 20). In the afternoon of the same day, her nephew was sleeping in a room located at the upper floor of their apartment. Her nephew was at that time sick (p. 20) with flu (p. 6). At around 5:00 o'clock P.M. of the same day, she was inside their comfort room, 'dumudumi' (p. 3). The comfort room was then closed (p. 16). All of a sudden, Benedicto barged inside of the comfort room and thereafter closed the door (p. 17). At that time. she had just finished 'dumudumi' (p. 4) and had just stood up with her maong shorts and her panty down below her knees (p. 16). On top, she was wearing a blouse (p. 7). She was not able to pull up her panty and maong shorts (p. 6) because she was caught aback. Because the main door of their apartment was locked (p. 3), she suspected that Benedicto climbed thru the kitchen (where one can also gain entry to their apartment). Thereafter, Benedicto chocked her (p. 3). She was able to shout for 'saklolo' many times but Benedicto slapped her (pp. 5 & 10), causing her mouth to bleed (p. 10). And then Benedicto pushed her, causing her to fall to the ground of the comfort room (p. 5). Her head fall near the side of the closed door of the comfort room and her feet beside the 'inodoro' (p. 19). At that time, her panty and maong shorts were still down her knees (pp. 18 & 6) but her bra and blouse were still on (p. 21) and she has not washed herself yet (p. 18). Despite that, Benedicto 'put down' his short and brief (p. 6) and suddenly laid on top of her (pp. 5 & 18). She felt his private part entered her private part. After a few minutes (p. 7), he stood up. He saw her watch with a leatherette bracelet and tried to grab it (p. 9). This pained her arms (p. 9) because she was reclining then (p. 10), so she just removed her watch and gave it to Benedicto (p. 9). Unsatisfied, he grabbed her necklace, hurting her neck (p. 9). He also asked for her money. For fear that he might harm her, she got her One Hundred Twenty (P120.00) Pesos from her pocket (p. 17) and gave it to him (p. 9). Thereafter, he went out of the comfort room and threatened her not to tell her husband about the incident otherwise he will kill her (p. 7). When Benedicto left the place where he is standing outside of the comfort room, she immediately put on her panty and her shorts and went out of the comfort room. She found her nephew sitting downstairs (p. 5). She also saw Benedicto passed beside her husband who had just arrived and did not know what had happened to her. Her husband saw Benedicto (p. 9) but only after the incident. When her husband came near her, she related to her husband that she was raped and her money and jewelries were taken (p. 10). Her husband immediately chased Benedicto. This created a commotion which attracted the attention of their neighbors. She learned from them (their neighbors) that they did not help her because they thought that she and her husband were just quarreling (p. 9). She also learned from her nephew that the latter, who was then upstairs at the beginning of the incident, went down to the ground floor when he heard her shout. But her nephew did not do anything, thinking that Ate and her husband were only quarreling (p. 20), and besides, he was sick with flu at that time. Also, her nephew just came from the province and does not know how to speak Tagalog (p. 5). She claims that she does not know Benedicto before the incident happened but she testified having seen him passing by their apartment (p. 8). LLpr She and her husband reported the matter to the police immediately after the incident on the same day (pp. 10 & 12). After she narrated everything to the police (Exh. "C", Prosecution), Pat. Celso Cruz of the Marikina Police asked her to just come back because there was nobody who would investigate her case. At any rate, she was told to proceed to the Eulogio Rodriguez, Sr. Memorial Hospital, District Health Office II, at Marikina, Metro Manila, for medical

162 examination. She heed the advice and on the same day, she went to E. Rodriguez Hospital. She arrived there at 7:00 o'clock in the evening. There, she only complained about the parts of her body where she was slapped and choked (p. 3). She did not relate to the examining doctor that she was raped because she was told by Pat. Celso Cruz that they do not examine rape victims at E. Rodriguez Hospital (p. 14). She was advised by the police to go instead to the Camp Crame for examination (p. 14). The E. Rodriguez Hospital issued her a Medical Certificate some days later, reading as follows: '"This is to certify that ANA ESCONDE Female, 24 years, of D. Bakal, Sto. Nio, Marikina, Metro Manila examined/treated in this hospital from/on January 31, 1989 . . . (sic) for the following: Hematoma 3 cm. x 3 cm. right sygomatic area Hematoma, 0.5 cm. x 0.5 cm. lateral aspect right upper lip. Erythema, 4 cm. linear, anterior neck, left. . . . " (p. 111, Records). Following the advice of Pat. Celso Cruz, she went to Camp Crame on the same day. They arrived at Camp Crame late that night (p. 3). Unfortunately, no doctor was around (p. 33, so they were told to come back the next day. The following day, she was subjected to a laboratory examination at the Camp Crame. They also examined her private parts (p. 3). After several days, she was issued a Medico Legal Report (p. 3) (Exh. "B", Prosecution), reading as follows: GENITAL AND EXTRAGENITAL "Fairly developed, fairly nourished and coherent female subject. Breasts are hemispherical with dark brown areola and nipples from which no secretion could be pressed out. Abdomen is flat and soft." There is abundant growth of pubic hair. Labia majora are full, convex and gaping with the pinkish red, hypertrophied labia minor preventing in between. On separating the same are disclosed an abraded posterior forchette and an elastic, fleshy-type hymen with shallow, healed laceration at 7 and deep healed lacerations at 3, 6 and 9 o'clock. External vaginal orifice offers slight resistance to the introduction of the examining index finger and the virgin-sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is normal in size, color and consistency with moderate amount of whitish, mucold secretion. CONCLUSION: "Subject is in non-virgin state physically. There are no external signs of recent application of any form of trauma. REMARKS: Vaginal and peri-urethral smears are positive for extracellular gram-negative diplococci but negative for spermatozoa. TIME AND DATE COMPLETED: 1120H 07 February 1989" (p. 114, Records). She went back to the Police Station on February 3, 1989. Ana's testimony on her injuries on her face and neck, caused when Benedicto choked and slapped her and when Benedicto abruptly grabbed her necklace, was confirmed on stand by Dr. Jose Rey Raquepo, the resident physician who examined her at the E. Rodriguez Hospital. Dr. Raquepo identified the above Medical Certificate he issued and declared in open court that: At around 7:30 PM on January 31, 1989 (TSN, Sept. 20, 1989, p. 7), he treated Ana's injuries on her face and neck (p. 8). He explained that the first and second entry (Hematoma) in the above certificate is 'pasa' which may have been caused by a blunt object, like a wood, stone, steel or an open fist, while the third entry (Erythema) is 'namula' which may have been caused by a blunt or may have been caused by choking or by scratching the skin by finger nails.

163

Dr. Desiderio Moraleda, the physician at the PC Crime Laboratory at Camp Crame, Quezon City, who examined Ana on February 1, 1989 also testified and he explained the method he used in arriving at his findings embodied in the above Medical Report he issued to Ana: He inserted a speculum in Ana's vagina. He found that Ana's internal as well as the external organ were already altered because the 'labia majora is already creeping hypertrophied labia minora'. Also 'the hymen shows deep insertion of the vagina speculum and an index finger offers only slight resistance.' Thus, his conclusion in the above Medical Report that: 'subject is in non-virgin state physically' (TSN, Oct. 31, 1989, p. 2). He explained further that the hymen is a fleshy membrane that hangs and partially covers the opening of vaginal canal. The insertion of any object to the vaginal canal will or may lacerate this membrane. The laceration of the hymen is usually caused by sexual intercourse. The examination of Ana's hymen, however, showed that there were shallow healed laceration at 7 and deep healed lacerations at 3, 6 and 9 o'clock position. These are like the face of the clock, 3, 6 and 9 o'clock. His finding is that Ana's laceration has already recuperated, and usually laceration healed in two weeks time. But he is quick in adding that if a woman has already lost her virginity by previous sexual intercourse, succeeding intercourse cannot produce new laceration. He also explained that the entry under remarks in the medico legal report: 'vaginal and peri-urethral smears are positive for extracellular gram-negative diploccoci but negative for spermatozoa', means that Ana is negative for spermatozoa of a male germ cell but is positive of extracellular bacteria ('extracellular gramnegative diploccoci'). This bacteria is the one that cause gonorrhea (sic), usually introduced by sexual intercourse of an infected partner. Very rarely could this bacteria be transmitted or caused by using dirty water because it cannot exist long outside of the vagina. Usually, in order to be infected with gonorrhea (sic), the bacteria should be inside the cell. In Ana's case, there is no infection yet because the bacteria is still outside her cell. He is quick to emphasize that the absence of spermatozoa does not necessarily mean that there was no sexual intercourse because there are cases of rape of women where the rapist could not have ejaculated. LLphil The entry which says that there is no external signs of any form of trauma' means that there is no injury in the whole body at the time of their examination. But again he emphasized that this does not necessarily mean that before he examined Ana, she sustained no injuries. It really depends on the gravity of the injury. There are injuries which can only cause the reddening of the face. These injuries could disappear the following day. Pat. Celso Cruz also confirmed on stand that: At the date of the incident, Ana came to their station. He advised Ana to go to the E. Rodriguez Hospital and Camp Crame for medical examination because he noticed that she has injuries (TSN, Sept. 11, 1989, p. 11). He took Ana's statement three (3) days after (p. 12) the date of the incident. Ana's husband, Jimenez Esconde, substantiated Ana's testimony specially on the events that transpired immediately after the rape. He declared that: "They rent a small apartment (TSN, August 16, 1989, pp. 89) consisting of two (2) floors (p. 9). One can enter their apartment thru its front door located at its ground floor and by passing thru the kitchen at the back of their apartment, by

164 using a stand (p. 10). Their ground floor has no window (p. 10). In this floor, their comfort room can be found. Their comfort room measures about 1 1/2 by two (2) meters. At the upper floor of their apartment, there are two (2) rooms (p. 9). At about 5:00 o'clock in the afternoon of January 31, 1989, the day of the subject incident, he went home from his upholstery shop (p. 3). Upon reaching the main entrance of their apartment, he pushed their main door. It was locked (p. 4), so he went around their house (p. 10) and entered their apartment by passing through their kitchen going to the second floor. When he was already near the door of their room, at the second floor (p. 4), he saw Benedicto, then attired in shorts and blue t-shirt (p. 7), facing the opened door (p. 6) of their comfort room (p. 5) and pointing his finger and talking to 'somebody' inside the comfort room. He hid himself. But from his place where he was at that time, he cannot see the inner portion of the comfort room (p. 6). He heard Benedicto to have said to that 'somebody' in the comfort room 'Ikaw huwag kang magsusumbong sa asawa mo, papatayin kita.' (p. 4). When he heard Benedicto uttered those words, he went out from where he is hiding (p. 16). Benedicto saw him and passed beside him, and told him: 'Ikaw, may atraso sa akin'. He did not do anything as he was caught aback by Benedicto's statement. He was thinking about what his 'atraso' is (p. 5). Benedicto at that time had left by passing thru the kitchen (the same way he entered their apartment) (p. 20). When Benedicto left, he saw his wife came out from the comfort room (p. 17). Her mouth was bleeding. He came near her and asked her what happened. She related that she was abused: 'Pinagsamantalahan daw po siya' (p. 5). Upon hearing that, he immediately chased Benedicto but he was not able to catch him because 'he was already at a far distance' (p. 6). When placed on stand, accused Benedicto claims that: Ana is his neighbor (TSN, Nov. 10, 1989, p. 3) and his sweetheart (p. 2) since December 8, 1988. On the date of the incident on January 31, 1989, he happened to pass by Ana's apartment in going home from a day's heavy driving of a passenger tricycle. At Ana's apartment door, he saw Ana standing. Ana called her. He came near her. She invited him to come inside their house. When he acceded and he entered Ana's apartment, Ana closed the door of the apartment. She asked him to sit in the long sofa located at the ground floor of their apartment. Thereafter, she sat beside him and 'nilalandi po ako.' She is 'trying to embrace me and caress me' (p. 4). Then they kissed each other (p. 3). Suddenly, he felt that someone is walking upstairs (p. 4). So he asked her if there are people upstairs. She answered yes' (p. 3). Ana's nephew went downstairs (p. 5), but immediately returned to the second floor of the apartment. Ana saw this opportunity, she invited him inside the comfort room (p. 5). He followed her, but he stopped in front of the door, outside the comfort room. Ana, once inside the comfort room, undressed herself naked and beckoned him to come in (p. 7). At that position, Ana's husband arrived (pp. 3-6). This happened at about 7:00 o'clock P.M. He saw Ana's husband peeped into the window of the comfort room from outside the apartment (p. 3) and saw his wife naked. Ana's husband 'asked' her wife why there was other people in their house. But Ana did not reply. He was about to leave the comfort room when all of a sudden, Ana's husband slapped her (p. 4) twice inside the comfort room (pp. 6-7). Ana has already put on her short and blouse at that time (p. 7). Seeing this, he stepped out of the house but her husband chased him with a pointed object (p. 4). So he ran fast as he could. Thereafter, the owner of the apartment which Ana and her husband are renting had him apprehended (p. 4). But on cross examination, he declared that:

165 At the time that Ana's husband peeped into the comfort room's window, seeing her wife naked, he (Benedicto) was still there in front of the comfort room. He was about to leave then (p. 10). But Ana's husband proceeded first in changing his clothes (p. 8), after which, he (Ana's husband) went to confront Ana and slapped her (p. 7). He also claims that he courted Ana. He was able to win her heart on December 8, 1988 (p. 11). Although they kept their relationship secret, they were seeing each other at the 'perya'. LibLex At the time of the incident, he knew that Ana was already married (p. 11). Benedicto's testimony was corroborated by his sur-rebuttal witness Pampillo Adona, thus: He know (sic) Benedicto because he is his long time friend (TSN, January 9, 1990, p. 7) and his co-driver 'karelyebo' in the passenger tricycle he is driving (p. 3). He recounted having met Ana in the 'perya' in Marikina (p. 3) on December 9, 1988. When he saw Ana at the 'perya', she and Benedicto were then 'holding hands'. In fact, Benedicto introduced Ana to him (witness) as his (Benedicto's) girlfriend (pp. 4-5). He claims seeing them again last December 30, 1988 about to ride a 'perryswheel' in the 'perya' (p. 5). This time, he saw Benedicto placed his arm on the shoulder of Ana while riding the 'perryswheel' (p. 6). But he had not seen them together anymore in January 1989 (p. 8) and that he has no knowledge if they still have a 'relationship' on that date. But Ana, as a rebuttal witness of the prosecution, disputed Benedicto's allegations in the latter's testimony and insists that: When her husband arrived, he did not lift a finger or say anything to her because her husband at that time did not know that she was raped and robbed (TSN, December 11, 1989, p. 2). She categorically denied any relationship with Benedicto. She insists that she does not know him. But her husband does (p. 2). Before the incident, she claims that she has never met this Benedicto (p. 3). She categorically denied having allowed Benedicto entry to their apartment (p. 5). There is nothing incredible in Ana's story. There was no evidence of her insincerity. Neither is there any evidence of motive for her to falsely testify against Benedicto. On the contrary, considering the inbred modesty and antipathy of Filipino women to air things that affect their honor, it is not normal for a Filipina like Ana to publicly admit that she had been criminally abused and ravished, exposed herself to the scandal, embarrassment and humiliation of a public trial wherein she would not only admit but also narrate the violation of her person unless that is the truth. It is her natural instinct to protect her honor (see People v. Dinola, G.R. No. 54567, March 22, 1990). This ratiocination finds support in the case at bar where the victim, Ana, at the time of the rape, had been married for only two (2) days. Given that condition, it is just inconsistent with human experience that after she had voluntarily married her husband for only two (2) days, would commit. as what Benedicto feigns, an adulterous act that early and right inside their conjugal abode, unless Ana is a nympho, which has not been established by the evidence and is negated by Benedicto himself when he testified that he spent time in courting Ana after she allegedly agreed to his love proposal. In rape cases the conduct of the woman immediately following the alleged assault is of utmost importance. Here, the fact that Ana immediately reported the incident to the police and had her body examined by a doctor negates fabrication or prevarification. Ana's willingness to face police investigators and to submit to a

166 physical examination is a mute eloquent testimony of the truth of her charge against Benedicto. It is not Ana's but Benedicto's testimony which rings with implausibility. His declarations that: after Ana's husband peeped thru the window of the comfort room and seeing her naked, he (Ana's husband) proceeded first in changing his clothes in their room before confronting Ana why she is naked in the presence of a man inside their apartment (TSN, November 9, 1989, pp. 3-4, TSN, Nov. 10, 1989, pp. 6-7 & 10) is incredible. It's not Filipino custom this way. This testimony is just beyond persuasion. Benedicto's argument that coition would be impossible in a small comfort room measuring two (2) meters by one and a half (11/2) meters (see Jimenez Esconde's testimony) is undeserving of consideration. Jurisprudence attests to the fact that Rape has been committed in many different places including places which to many would appear to be unlikely and high risk places for sexual embraces (People v. Ratanan, G.R. No. 48362, Feb. 28, 1990). It can be committed in a five (5) meter room with five (5) people inside (People v. Detuya, 154 SCRA 410) or in the front seat of a jeep (People v. Ison, 173 SCRA 118), or on a pathway twenty (20) meters away from a beauty contest in progress (People v. Gamboa, 145 SCRA 289 [1986] or on the roadside at high noon (People v. Lopez, 141 SCRA 385 [1986] or inside a washroom adjoining a house (People v. Jones, 137 SCRA 166 [1985] or on a 'pilapil' where people usually pass by (People v. Aragon, 138 SCRA 166 [1985]). It may be uncomfortable having coitus in a such small room but it certainly is not impossible. Besides, it was not shown although the trial court may have observed, that either Ana or Benedicto is too big to make coition in the said room an impossibility. Man, once overcome by bestial desires, chooses not the time, the place, the occasion, nor even the person (see People v. Aragon, G.R. No. 51736, Aug. 4, 1988). Benedicto, insisting on this innocence, capitalizes on the absence of spermatozoa on Ana as borne-out by the Medical Report. This can not be given weight. What is determinative of rape is not the emission of semen but penetration of the female sexual organ (see People v. Cruz, G.R. 69251, Sept. 13, 1989). In fact, complete or total penetration of Ana's private organ is not necessary to consummate the crime of rape. The slightest penetration will suffice. Neither is the rupture of the hymen essential for the offense of consummated rape. It is enough that there is proof of entrance of the male organ within the labia of the pudendum. It is not necessary to show to what extent penetration of the woman's body has been made. It is enough if the woman's body is entered, (see People v. Bacani y Poliosco, G.R. No. 77854, Jan. 24, 1990). We concur with the trial court when it concluded that there was no lover relationship between Benedicto and Ana. If ever they have been lovers, it has not been satisfactorily established that the relationship continued after the marriage of Ana and up to the date of the incident. LLphil IS THE COITION AGAINST ANA'S WILL? It must be recalled that when Benedicto barged inside the comfort room, she has just stood up after she 'dumumi'. In fact she has not washed herself yet, and her panty and short were still down below her knees. Anybody in her position would be dumbfounded. At any rate she shouted 'saklolo' many times, but he choked her and then slapped her, then pushed her to the ground, her head hitting the stone

167 wall of the comfort room. Then Benedicto put down his shorts and lay on top of her. The working of human mind when placed under such emotional stress is unpredictable. In this given situation, some may shout, some may faint, and some may be shocked into insensibility as what happened to Ana. To Ana's mind at that point in time, Benedicto is determined to do whatever he intends to do. Fear of further injuries simply pinned her mind, overpowering and stifling any attempt to resist the sexual assault. Ana may have failed to successfully resist the accused's advances at the actual time of the sexual assault itself but such is not a manifestation of consent, but rather an indication of involuntary submission (see People v. Aquino, G.R. No. 84913-15, June 5, 1990. Anyway, force or intimidation itself is sufficient for a woman not to put up any resistance. Not only a firearm can produce intimidation. Intimidation is addressed to the mind. (see People v. Corales, G.R. No. 76922, Feb. 21, 1990). Lastly, the trial court's observation is worthy of reiteration: "'The defense of the accused smacks of artificiality, is vague and inconclusive. The robbery charge which the prosecution proved but the accused did not deny argue against the defense interposed in the rape charge. A lover does not rob the object of his love and affection."' THE CRIME The trial court in the dispositive portion of its assailed Decision found Benedicto guilty of the crime of Robbery with Rape as defined under Art. 293 in relation to paragraph 2, Art. 294 of the Revised Penal Code as amended by PD 767, as follows: Art. 293. Who are guilty of robbery. Any person who, with intent to gain, shall take any personal property belonging to another, by means of violence against or intimidation of any person, or using force upon anything shall be guilty of robbery. Art. 294 Robbery with violence against or intimidation of persons Penalties. Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: xxx xxx xxx 2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when the robbery shall have been accompanied by rape or intentional mutilation, or if by reason or on occasion of such robbery any of the physical injuries penalized in subdivision I of Article 263 shall have been inflicted; Provided, however, that when the robbery accompanied with rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death (As amended by PD No. 767). xxx xxx xxx 5. The penalty of prision correccional in its maximum period to prision mayor in its medium period in other cases. xxx xxx xxx The penalty imposed is not in accordance with the aforecited provisions of the law. The immediately aforequoted provision of law on special complex crime of Robbery with Rape employs the clause 'when the robbery shall have been

168 accompanied with rape.' In other words to be liable under the said provision of law the offender must have the intent to take the personal property belonging to another with intent to gain and such intent must precede the rape (p. 601, Commentaries on the Revised Penal Code by J. Luis B. Reyes, 11th Ed., see also People v. Atanacio, G.R. No. L-11844, Nov. 29, 1960; People v. Elizaga, 86 Phil. 364; People v. Glore, 87 Phil. 736; People v. Tolentino, G.R. No. 59097, Sept. 20, 1988; applying Robbery with Homicide by analogy; see also People v. Dinola, 183 SCRA 503). In the case at bar, the Rape was Benedicto's primary objective and his taking away Ana's personal properties against her will was only an afterthought. Therefore, there is no special complex crime of Robbery with Rape under Art. 48 of the Revised Penal Code. Neither is Art. 48 of the Revised Penal Code on Complex Crime applicable because Benedicto's act of raping Ana and thereafter taking her money and jewelries do not constitute a single act (but separate acts) constituting two (2) or more grave or less grave felonies, or it cannot be said that the crime of Rape is a necessary means to commit the crime of Robbery or viceversa. What Benedicto committed are two (2) separate crimes of Robbery and Rape under the aforequoted Art. 293, and Art. 335 of the Revised Penal Code reading to wit: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. xxx By using force or intimidation;. xxx xxx

The crime of rape shall be punished by reclusion perpetua. prcd xxx xxx xxx THE PENALTY In U.S. v. Padalit (1 Phil. 426) where the accused was charged of Robbery with Homicide (also a special complex crime), the Supreme Court infers that he may be convicted of any one of them. In People v. Dinola (183 SCRA 496), the accused was charged and convicted of the crime of Robbery with Rape but the Supreme Court modified the judgment of the lower court by sentencing the accused to two distinct crimes of Robbery and Rape on account of its findings that the original design of the accused was to commit Rape but the accused after committing Rape also committed Robbery because the opportunity presented itself. The crime of Rape is punished by Reclusion Perpetua (see Art. 335, above), thus, the Indeterminate Sentence Law (Act No. 4103 as amended) is not applicable (see People v. Amores, 58 SCRA 510). He should be punished by Reclusion Perpetua for the crime of rape. Benedicto has also committed Robbery and must be punished by prision correccional in its maximum period to prision mayor in its medium period (see Art. 294, Nov. 5). Here, the Indeterminate Sentence Law applies. Thus, Benedicto should be penalized with an Indeterminate penalty within the range of arresto mayor in its maximum period to prision correccional in its medium period of four (4) months and one (1) day to four (4) years and two (2) months as minimum and within the range of six (6) years and one (1) day to eight (8) years of prision correccional in its maximum period to prision mayor in its minimum period as maximum.

169

WHEREFORE, the judgment of the trial court is MODIFIED as follows: 1) Benedicto M. Cruz is found guilty of RAPE and is sentenced to Reclusion Perpetua under Art. 27 of the Revised Penal Code. 2) Benedicto M. Cruz is also found guilty of the separate crime of ROBBERY and is sentenced to the Indeterminate penalty of six (6) months and one (1) day of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. The Division Clerk of this Court is hereby ordered to desist from entering judgment (see Revised Internal Rules of this Court, Sec. 5, Rule 11) and after the lapse of the period for filing a motion for reconsideration, is ordered to elevate this case and its complete records to the Supreme Court for review in accordance with Rule 124, Sec. 13 of the Revised Rules on Criminal Procedure. SO ORDERED. (Court of Appeals' Decision, pp. 1-8) We have examined the records of this case, read and evaluated the evidence including the transcripts of the stenographic notes of the witnesses for the prosecution and for the defense, deliberated on the arguments raised on appeal and agree completely with the findings and conclusions of the Court of Appeals. The decision of the appellate court is accordingly adopted in toto. Cdpr The crime was committed with a certain degree of perversity considering that the victim of rape had been married only three (3) days before the incident. The usual indemnity of Thirty Thousand Pesos which we impose in rape cases is therefore increased to Forty Thousand Pesos. WHEREFORE, the judgment of the Court of Appeals is AFFIRMED as to both penalties for rape and robbery with a MODIFICATION in the crime of rape that the appellant is ordered to indemnify Ana Esconde y Omogowog in the amount of FORTY THOUSAND PESOS (P40,000.00) in addition to the TEN THOUSAND PESOS (P10,000.00) moral damages and ONE THOUSAND ONE HUNDRED TWENTY PESOS (P1,120.00) value of the property taken as imposed by the trial court and sustained by the Court of Appeals. SO ORDERED.

[G.R. No. 85771. November 19, 1991.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BAYANI DE LOS REYES y PUSTIGO, @ "Anie", accused-appellant. DECISION At his arraignment on 17 June 1987 1 in Criminal Case No. ML-240 of Branch 4 of the Regional Trial Court of Bataan, Third Judicial Region, accused-appellant entered a plea of not guilty to an Information charging him and one Mando Doe with the crime of Robbery with Rape, committed as follows: xxx xxx xxx "That on or about October 15, 1986 at night time purposely sought to better accomplish their criminal design in Mariveles, Bataan, Philippines, and within the jurisdiction of this Honorable Court, the said accused conspiring, confederating together and mutually aiding one another, with intent to gain, did then and there with the use of firearm (sic) and bladed weapon willfully, unlawfully and

170 feloniously grab, divest and carry away one (1 ) Seiko Five Man's Wrist Watch, valued at P500.00; one (1) gold ring with diamond stones, worth P500.00; and cash money in the sum of P500.00, belonging to Emily R. Punzalan, one (1) Seiko Five Men's (sic) Wrist Watch, gold plated and one (1) military ID amounting to P1,200.00, belonging to Graciano Hernandez, against the will and without the consent of the said owners, to their damage and prejudice in the total sum of P2,700.00 and the said robbery was accompanied by rape, that is by means of force, intimidation and abuse of superior strength while armed with a bladed weapon, the accused Bayani de los Reyes, did then and there willfully, unlawfully and feloniously succeed in having carnal knowledge of the offended party, Emily R. Punzalan, against her will and consent, to her damage and prejudice. cdphil CONTRARY TO LAW: Balanga, Bataan, May 22, 1987." 2 xxx xxx xxx The other accused was not brought to the jurisdiction of the court and remains at large. After trial on the merits, the trial court 3 promulgated on 13 October 1988 a decision 4 finding accused-appellant guilty of the crime of robbery with rape as defined and penalized under paragraph 2, Article 294 of the Revised Penal Code, as amended by P.D. No. 767, and sentencing him to suffer the penalty of reclusion perpetua, with the accessory penalties provided for by law; to indemnify the offended party, Emily R. Punzalan, in the amount of P25,000.00 and to pay her the amount of P500. 00 for the cash money stolen from her which was not recovered; and to pay the proportionate share of the costs. The dispositive portion of the decision reads: xxx xxx xxx "WHEREFORE, the Court finds the accused Bayani de los Reyes y Pustigo guilty beyond reasonable doubt as principal by direct participation of the crime of robbery with rape as defined and penalized under Article 294, par. 2 of the Revised Penal Code, as amended by Presidential Decree No. 767, and as charged in the information, with the attendance of the aggravating circumstance of nighttime, without any mitigating circumstance to off-set the same, and hereby sentences him to suffer the penalty of RECLUSION PERPETUA, with the accessory penalties provided for by law, and ordering him to indemnify the offended party Emily Punzalan in the amount of P25,000.00, and to pay the latter the amount of P500.00 for the cash money stolen from her and unrecovered, without subsidiary imprisonment in case of insolvency, and to pay the proportionate share of the costs. SO ORDERED." Immediately after the promulgation, accused-appellant (hereinafter referred to as Appellant), filed a Notice of Appeal wherein he manifested his intention to appeal from the decision to the Court of Appeals on questions of facts and law. 5 Obviously, the appeal should be presented to this Court. 6 Quite correctly, however, the trial court forwarded to this Court the records of the case and, in Our Resolution of 11 January 1989, 7 We accepted the appeal. The facts of the case are sufficiently summarized in the Brief for the People as follows: "At around 8:00 o'clock in the evening of 15 October 1986, private complainant Emily Punzalan went out of her house in San Isidro, Mariveles, Bataan, to collect payment for the 'tocino' which she had sold on credit to a certain Cora Haluot.

171 (tsn, 6 August 1987, pp. 8-9; tsn, 27 August 1987, pp. 6,11). She encountered her friend of around 10 years, the other private complainant, Graciano Hernandez, in the canteen of her house, and since it was payday they invited each other to supper. (tsn, 27 August 1987, pp. 16-17). After eating supper in an eatery near the municipal building, they proceeded to the house of Cora Haluot at Bonifacio Street. (id., p. 6). Cora Haluot was not around, so private complainant Emily Punzalan invited the other private complainant Graciano Hernandez, to enjoy the breeze at the old pier along Bonifacio Street. (tsn, 6 August 1987, pp. 7-8; tsn, 27 August 1987, p. 19; tsn, 10 September 1987, p. 4). While there, private complainant Emily Punzalan happened to sit down on a rock with feces. (tsn, 6 August 1987, p. 8). So Emily removed her soiled pants to wash it off with sea water. (id., pp. 8-9). When she was about to wash her pants, accused-appellant Bayani de los Reyes and another accused, a certain Mando, approached them. (id., p. 9). Accused-appellant Bayani de los Reyes informed the couple that they (the two accused) were barangays tanods, and that strolling ground the pier was prohibited. (id., p. 9). Private complainant Emily Punzalan retorted that how could it be so when the pier was a public place, while private complainant Graciano Hernandez apologized, saying that he v as not aware of any such prohibition, and that they were not 'katalo'. (id., p. 10). Soon thereafter, the two accused walked some 5 meters away from the two private complainants, during which period of time Emily Punzalan hurriedly put on her soiled pants. She was about to button the same, when the accused returned and collared them (the private complainants). (id.; tsn, 1 October 1987, p. 6). Mando pointed a gun at private complainant Graciano Hernandez while accused appellant Bayani de los Reyes pulled the hair, and pointed a dagger at the left side of the neck, of private complainant Emily Punzalan, at the same time pulling the latter to the cemented portion of the old pier some 12 meters away from the other two. (tsn, 6 August 1987, pp. 1011; tsn, 10 September 1987, pp. 19-22; tsn, 1 October 1987, p. 7). Upon reaching the cemented portion of the pier, accused-appellant Bayani de los Reyes ordered, with the dagger still pointed at the left side of the neck of private complainant Emily Punzalan, the latter to lie down and to remove her pants and panty, to which the latter, being so frightened, complied. (tsn, 6 August 1987, pp. 11-12; tsn, 10 September 1987, p. 24). After removing his pants, the accusedappellant, then, placed himself on top of private complainant Emily Punzalan, who was crying helplessly, and t[h]is organ went in and out of [private complainant Emily Punzalan's organ' for about 15 minutes; after which, accusedappellant ordered said private complainant, to put on her panty and pants. (tsn, 6 August 1987, pp. 12-13; tsn, 10 September 1987, pp. 25, 27). Accused-appellant, then, brought private complainant Emily Punzalan to the other two. (tsn, 6 August 1987, p. 13). Accused Mando asked private complainant Emily Punzalan if she has a residence certificate, to which the latter replied in the negative. (id) Frisking Emily Punzalan from her breasts to her private parts, accused Mando removed, upon instruction of the accused-appellant, private complainant's P500.00 from her wallet. (id., pp. 13-14). Furthermore, accused Mando, likewise upon instruction of the accused-appellant Bayani de los Reyes, took Emily Punzalan's white gold ring with three diamond stones and Seiko black dial watch, and private complainant Graciano Hernandez' Seiko gold-plated watch and military ID. (id., pp. 14-15; tsn, 1 October 1987, p. 7). Subsequently, accused-appellant Bayani de los Reyes told accused Mando to get a 'banca.' (tsn, 6 August 1987, p. 15). Private complainant Emily Punzalan pleaded with the two accused to take pity on them and said that they will just forget the incident. (id.) The accused-appellant was willing to allow private complainant Emily Punzalan to go home (in fact, he wanted her to go home naked) so long as the other private complainant, Graciano Hernandez, would stay behind. (id., pp.

172 15-16). Pleading with the two accused, the two private complainants were finally allowed to go home with their assurance that they will forget the incident. (id., tsn, 10 September 1987, p. 28). Private complainant Emily Punzalan got home at past 10:00 o'clock in the evening. (tsn, 6 August 1987, p. 16). The following day, 16 October 1986, the two complainants reported the incident to the Mariveles Police Station, private complainant Emily Punzalan identifying her assailant as a furly bearded man, upon which information, the investigating officer, P/Cpl. Isidro Ruiz, immediately called his fellow policemen, boarded a vehicle, proceeded to the place of the incident, and upon information gathered from an informant, contacted the wife of accused-appellant Bayani de los Reyes, who voluntarily surrendered to him the two watches and the ring belonging to the two private complainants. (id,pp. 18,27-28;tsn, 1 October 1987, p. 11; tsn, 11 November 1987, pp. 20-21). Upon advice, Emily Punzalan proceeded to the Municipal Health Office in front of the Municipal Hall and was examined by Dr. Willie Calimbas at about 9:00 o'clock that morning. (tsn, 6 August 1987, pp. 20-21; Exhibit B, p. 286, Records). When the complaint was filed with the Municipal Trial Court of Mariveles for preliminary investigation, the wife and mother of accused-appellant Bayani de 109 Reyes approached private complainant Emily Punzalan repeatedly for the settlement of the case. (tsn, 6 August 1987, pp. 23-27). They even went to the house of the private complainant; but, since the latter's parents were not informed of the incident which had happened to their daughter, said private complainant, to get rid of the two visitors, told them that she had forgiven the accused-appellant, and, upon the suggestion from the two, agreed to follow them to the Municipal Building to sign the necessary papers for the dismissal of the case against the accused-appellant. (id., pp. 24-25). Emily Punzalan did not follow the wife and mother of accused-appellant since it was never her intention to withdraw from the case. (id., p. 25). At another time, the mother and the wife of the accusedappellant visited private complainant Emily Punzalan at her workplace in the Pasig Textile factory (Mariveles, Bataan) (id., p. 26). On that occasion, they offered to double the P500.00 taken from, and gave a wristwatch to, said private complainant, which the latter refused saying that it was not her birthday. (id.)." 8 Dr. Calimbas recorded 9 the following findings at the time he conducted the medical examination of Emily Punzalan: LexLib "1. Abrasion along the vertebral line at the level of the lumbar area back. 2. Contusion entero medical aspect lower 3rd level of the thigh left. 3. Contusion and abrasion superficial around the vaginal area 4. Hymen with caruncles. 5. Vaginal wall slightly hyperamic. Smear done negative. Vaginal discharge perivaginal orifice." Upon the other hand, appellant presented a different version of what transpired on the night the crime charged was committed. His version, as summarized in his brief, is as follows: "In the evening of October 15, 1986, while accused-appellant a fisherman and his wife, were strolling along the old pier at Bonifacio street in Mariveles, they caught a couple, completely naked, making love inside a banca which they own. They recognized the couple, Emily Punzalan and Graciano Hernandez, as both of them live near their place (TSN, February 17, 1988, p. 5).

173 As it was the very same banca which he uses to earn a living, accused-appellant felt insulted and thus berated the couple. The couple apologized, but accusedappellant could not be restrained. To teach the couple a lesson, he took their clothes and brought it home with him. Upon reaching home, accused-appellant placed the confiscated clothes under his bed and immediately left again to report the incident to a barangay councilman. Failing to find the barangay councilman, he proceeded to the house of a policeman residing in their barangay who in turn told him that he (the policeman) would take care of everything. When accused-appellant returned to his home, he found out that his wife, taking pity on the couple, returned back the confiscated clothes (TSN, January 28, 1988, p. 26). In the early morning of the following day, accused-appellant while preparing his fishing equipment, found under his bed wristwatches and a ring wrapped in a handkerchief Accused-appellant entrusted the wristwatches and the ring to Cpl. Isidro Ruiz of the Mariveles police, who in turn promised to deliver the same to the owners. (TSN, February 17, 1988, p. 8)." 10 In finding the appellant guilty of the crime charged, the trial court made the following well-written findings and conclusions: xxx xxx xxx "Judging from the attendant circumstances, the Court is inclined to give more credence to the prosecution's version of the incident which is consistent with the material and physical facts of the case. To begin with, complainants Graciano and Emily have positively identified the accused as one of the two malefactors who staged the robbery-rape in question. This identification is even more reinforced by the confirmation of the accused placing himself at the scene of the crime during its commission. The sequence of events would reveal that said complainants have had ample opportunity of having a good look at the accused. Firstly, when they were initially accosted by said accused during which a short conversation transpired between them; secondly, when the accused upon departing, momentarily returned and again accepted them and it was at this juncture that the rape on Emily was committed; and, thirdly, when finally the accused divested them of their personal effects. More particularly, since Emily was the victim of the assault herself, she thus came face to face with her abuser. This is another clinching factor that enabled her to recollect, if not retain a clear memory of the face of said accused. 'It is the natural reaction of every victim of criminal violence to strive to know the identity of the assailant' (People vs. Orteza, 6 SCRA 109 (1962); People vs. Catipon, G.R. Nos. L-49264-66, Oct. 9, 1985). What further made recognition much easier is the illumination coming from the public hospital some 14 meters away which gave Emily a clearer view of the accused's facial features. Besides, the accused made no effort to cover his face or resort to any disguise when perpetrating the crime. As held by the Supreme Court: 'Where clear and positive identification is made by the People's witnesses regarding the participation of the accused in the crime against him, his denial and explanation cannot overcome such evidence. (People vs. Chavez, et al., 81 OG No. 16. p. 1612). prcd There is nothing in the records that would show that complainant Emily had any bias or prejudice against the accused. Her court testimony was given in a direct, coherent and forthright manner and devoid of any suspicions circumstance. The Court finds no marked inconsistencies in her court declaration as contrasted to and which substantially dovetails with what she narrated in her sworn statement (Exh. "A") executed by her the day following the tragic incident before the police

174 investigator spontaneously at a time when the facts relating thereto were still fresh in her mind and when extraneous influence was not yet exerted upon her and her only motive was to tell the truth in the interest of justice. To the mind of the Court, the fact that she lost no time in denouncing the wrong done to her to the police and revealing the details of the incident in question at the same time specifically describing the accused as a bearded man, and whose nickname is 'Anie' which easily led to the recovery by the police of part of the stolen articles and the prompt arrest of the accused, bespeak of the spontaneity, candidness and reliability on her part. The testimony of Graciano, the other complainant, equally positive, categorical and unequivocal, complements and affirms that of Emily's to the effect that the accused was Emily's rapist. His recognition of the culprits is positive and absolute. According to him, he was present at the scene of the crime as he was then with Emily so that he actually witnessed at close range the commission of the dastardly come, being then held at bay with a gun pointed at him by the accused, Mando Doe, while the accused delos Reyes was ravishing Emily. His narration of the events of which he was a direct and immediate knowledge strikes the Court as positive, credible and probable and would suffice to mark said accused as the one who raped Emily and victimized them of their personal belongings. It is true that Graciano was himself a victim with respect to the robbery aspect of the incident and an intimate friend of Emily and, therefore, may have in his heart a desire to avenge the wrongdoing committed on his person and that of Emily. But while revenge is a normal reaction in a person who was aggrieved by the felonious act of another, it does not follow that vindictiveness should be directed aimlessly so as to include even innocent persons. (Cf. People vs. Sarabia, et al., G.R. No. L-27422, Jan. 30, 1984, 83 OG No. 47, p. 6068). Neither does such closeness of relationship necessarily taint Graciano's testimony or detract therefrom the probative credit that should otherwise be accorded to it; nor does the same prove prejudice or bias (Cf. People vs. Ciria, 106 SCRA 383); it may indicate at most the need for some caution in its assessment but it should not be deemed as impairing testimonial credit (People vs. Cruz, 133 SCRA 426; People vs. Bautista, 147 SCRA 500), specially where, as here, the testimony of Graciano finds ample corroboration as regards material details not only from the declarations of Emily and other prosecution witnesses but also from the testimony of the accused himself who, as earlier adverted to, admitted his presence at the crime scene although with a different version of the incident (People vs. Gutierrez, Jr., GR No. 3983, March 14, 1988). At any rate, as between the positive and categorical declarations of the two principal prosecution witnesses, Emily and Graciano, and the mere denial constituting self-serving negative assertions of the accused and his sole witness, his wife Imelda, that no such unusual incident involving the accused occurred on that night in question, the choice is not hard to make, for the jurisprudence on the matter is that positive statement is stronger and attains greater evidentiary weight than negative evidence (People vs. Gonsales, 76 Phil. 473; People vs. Bocasas, 137 SCRA 531; People vs. Paseo, Jr., 137 SCRA 137). Confirmation of Emily's account of her defdoration also came from Dr. Willie Calimbas, the Rural Health Physician who, after examining her physically and genitally barely 12 hours after the incident, found the presence of fresh injuries such as abrasions (or scratches or bluish spots) and contusions on her body. Notably, the contusions and abrasions at the skin surface surrounding the vagina were, as explained by the examining physician, caused by the force applied on the victim resulting in trauma and hyperemia (blood congestion) due to the forceful penetration of a hard object, like a penis, into the vaginal wall. This physical

175 evidence which is of the highest order, stamps Emily's testimony of how she was forcibly ravished by the accused with the impress of solid truth, and gives the lie to the latter's protestations of innocence. The fact that complainant is no longer a virgin as of the date of (sic) incident is of no material consequence. Virginity is not an essential element in rape and the character of the offended party in rape committed by force is immaterial.' (People vs. Ramos, G.R. No. L-49281, Aug. 27, 1987). prLL Equally complementing complainant's story is the testimony of P/Cpl. Isidro Ruiz, the police investigator. In a direct and coherent manner, he declared that upon learning from an informant that complainants' stolen articles were in the possession of the accused's wife, Imelda, he immediately contacted the latter who, therewith, voluntarily surrendered to him the subject items consisting of two wrist watches and a gold ring. He added that when he asked Imelda where she got said jewelries, she replied that her husband entrusted them to her for safekeeping. The recovery of the stolen items the day after the incident apparently cracked the case for the police for then it led to the early fall of the accused in their hands that same day and to his having to account for his misdeeds. Doubtless, these proven physical facts would suffice to connect, if not incriminate the accused to the robbery-rape in question. Assuredly, there can be no clearer proof of asportation by said accused of the personal effects of complainants than that of their recovery from the possession of his wife. Incidentally, the testimony of Corporal Ruiz anent the fact of recovery was neither rebutted nor belied by the accused which thereby renders it well-nigh conclusive against the latter. And the court has no reason to disbelieve the testimony of this police officer who, as such, has the duty and moral obligation, in the interest of fairplay and as an act of simple justice, to defend the truth as he is oath bound to do. There is nothing on record to suggest that he was moved by any motive other than simply the carrying out of his official mission or duties' (People vs. Patag, 144 SCRA 429 [1986]). In fact, the accused was even candid enough to admit that he has (sic) no quarrel or misunderstanding with Corporal Ruiz prior to the incident in question (t.s.n., p. 27, Feb. 17, 1988) and does not know why he would so testify that way (t.s.n., p. 26). The principle of law that a person in possession or control of the stolen goods is presumed to be the author of the larceny well applies to the accused even if they were recovered from his wife specially since he miserably failed to discharge the burden of accounting for and justifying his possession thereof. It would be naive for the Court, indeed, if it fails to conclude from this proven fact the culpable participation of the accused in the crime in question. The motivation which the accused seemingly ascribes to complainants which is revenge for having upbraided them after he had surprised them in the act of lustful coupling on board his banca, is to crude and shallow and obviously a desperate, albeit vain attempt at seeking exculpation. The Court's appreciation of human values rejects the purported motive as fanciful and illogical. In the first place, since it was allegedly complainant's despicable sexual conduct that has infuriated the accused there was, therefore, no sound reason for them to stir up any kind of vengeful retaliation i.e., by falsely incriminating the accused of a very grave crime carrying capital punishment and, secondly, complainant's natural instinct would have been to just remain silent or to hide such immoral assignation on their part which, if divulged, would certainly put them to great shame and scandal, if not make of themselves the object of gossip in their community. Yet, when they opted to face cruel realities by exposing with immediacy the sexual assault and robbery committed by the accused, it was because to them the crime, grave as it is, was too much to bear and keep to themselves and should not remain unpunished.

176 Moreover, it is hardly believable and so unnatural that Graciano and Emily would be go bereft of inhibition or any sense of modesty as to commit sexual congress on board a banca moored along the sea shore at the old pier. As a matter of decency, they could have at least mutually agreed to a more secret trysting place than in such venue an open space with anyone expected to just appear from nowhere and thus reveal their promiscuity. In the same vein, the claim of the accused and his wife, Imelda, that Emily and Graciano were then completely naked when they surprised them in the act of sexual indulgence, equally defies the rational limits, if not realities of human behavior. For sure, not even those of wanton disposition would stop themselves of all their clothings, including such personal effects as wrist watches and ring when gratifying their libidious urge more so in a public place and with a time constraint. What they have to simply do if they were so lustfully disposed was just to lower their underwear and be done over with in such short moment as possible without necessarily undressing themselves completely. Of note also is that the accused made no imputation of any sort that Emily is a woman of loose morals or ill-repute with the habit of satisfying her sexual urge even in a public place which, as in this case, is a few meters distant from a busy street and a public hospital and frequented by night strollers. llcd Evidence to be worthy of credit, must not only proceed from a reliable source, but it must in addition, be credible in itself Stated otherwise, it must be natural, reasonable and probable as to make it easy to believe (People vs. Pea, Jr., GR No. L-72354, June 30, 1987). Moreover, it has long been held that no young Filipina of decent repute would publicly admit that she has been criminally abused and ravished unless that is the truth. It is her natural instinct to protect her honor (People vs. Ramilo, GR No. L52230, Dec. 15, 1986, 146 SCRA 256 and cases cited therein). Herein, it is rather inconceivable that a simple and unsophisticated provincial woman like Emily who was still possessed of the traditional and provincial modesty of a Filipina, would be that callous as to deliberately fabricate a tale of an assault on her chastity and to suffer torment, if not ignominy of having to testify in a court of justice about a grievous wrong done to hereby the accused if in truth she was not really raped and her only motive was revenge. The records of the case do not indicate that she had any motive other than an honest desire of outstanding justice and redress for the bestial act committed on her (Cf. People vs. Tejada, 109 SCRA 176; People vs. Cayado, et al., GR No.L-47398, March 14, 1988). As sequel, if Emily was merely fabricating her story of robbery with rape, she would easily be snarled and caught in the web of her own prevarications during the laborious grind of a public trial. Certainly, she should feel deterred by the grave consequences of such willful falsehood which could easily be unmasked as such by the medical findings that would be made after a thorough examination of her body. It was the truth of her story that gave her the courage and boldness fearlessly to face interrogation by the police authorities and medical examination, both effective means to verify the truth of her serious accusation (Cf People vs. Clarin, GR No. L-47200, Oct. 30, 1981, 78 OG No. 62, p. 7276). And the Court is convinced that Emily's testimony was given with sincerity and candor. It leaves no room for the slightest doubt that it is not a mere concoction so that it has no hesitation to accept the same as the more credible version as against that of the mere denial of the accused. It is true that the location where complainant was sexually assaulted, i.e., atop a concrete portion at (sic) old pier, is a place where people usually pass by and stroll and located about a few meters distant from the road and a public hospital. But this does not render the commission of the crime

177 improbable, the Court being charged with notice of the fact that rape has been committed even in vicinities or places where people usually gather or pass by, such as in parks and by a roadside (People vs. Vidal, 127 SCRA 168 (1984); People vs. Mesias, 127 SCRA 192 (1984) and People vs. Lopez, 141 SCRA 386 (1986)." 11 It appreciated against the appellant the aggravating circumstance of nighttime on the ground that the appellant deliberately waited for nighttime before perpetrating the crime to avoid discovery, if not minimize the risk of capture. Appellant, assisted by the then Citizens Legal Assistance Office (now Public Attorney's Office), interposes a lone assignment of error in his Brief, 12 to wit: "THE TRIAL COURT ERRED IN NOT HOLDING THAT THE EVIDENCE OF THE PROSECUTION HAS FAILED TO MEET THE TEST OF MORAL CERTAINTY OF ACCUSED-APPELLANT'S GUILT AND TO OVERCOME THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN HIS FAVOR." in support of which he contends that: (1) it is highly improbable that the offense would be committed under the circumstances the offended party, Emily Punzalan, testified to; (2) the testimony of Emily is replete with and beset by serious inconsistencies which render the same unworthy of belief; (3) the injuries suffered by Emily were not proven by the prosecution to be the result of rape; (4) certain material facts were not appreciated by the trial court; and (5) there was no intent of gain on his part. LLphil As to the first, appellant claims that the crime was allegedly committed along Bonifacio Street, which is a busy street even at nighttime. There are at least fifty (50) houses along said street, the nearest being only about thirty (30) meters away from the place where the crime was allegedly committed. Furthermore, the site of the alleged crime is only about fourteen (14) meters away from a public hospital. Emily also testified that there were three (3) persons and a couple who were about thirty (30) meters from the crime scene. If it is indeed true that she shouted and cried at the time she was allegedly being abused by the Appellant, then it would have certainly attracted the attention of the people nearby. As to the second contention, Appellant points out several allegedly contradictions and inconsistencies in Emily's testimony. Thus, while she testified during the direct examination that it was the Appellant himself who removed her pair of pants and panty, she completely changed her answer on cross-examination when she claimed that it was she who removed the pair of pants and panty upon order of the appellant. Moreover, she averred that she had never met the appellant before the incident and that it was only Cpl. Isidro Y. Ruiz who identified the perpetrator from the description she gave; yet, Cpl. Isidro Y. Ruiz testified that appellant was identified by the private complainant herself, even giving his first name. Lastly, she attested to the fact that aside from her hair being pulled by the appellant, no other physical violence was committed before and during the rape. However, her companion, Graciano Hernandez, claimed that he saw the appellant "box" Emily's thighs before she was raped. Appellant avers that these inconsistencies in the account of the incident cannot but create doubt as to the* truthfulness and sincerity. Appellant likewise challenges the decision of the court a quo on the basis of the negative finding of spermatozoa within the victim's sexual organ. Although admitting that the absence of spermatozoa does not negate rape, its absence when the private complainant was examined the day after the alleged incident

178 strengthened his claim that he caught the couple making love, and belied Emily's allegation that the Appellant raped her. The Appellant's unexpected arrival prevented the couple, specifically the man, from reaching the climax of their sexual act, thereby accounting for the absence of spermatozoa. As to the robbery aspect of the case, appellant submits that there was no intent to gain as it is an undisputed fact that the alleged stolen items were returned to the proper authority the next day. In the Brief for the People, the Solicitor General nixes all the contentions of Appellant and prays that the decision appealed from be affirmed in toto. We now address the points raised in the Appellant's Brief. The first point raised by appellant is drawn from conclusions which are not supported by facts. There is no evidence on record as to the length of Bonifacio Street, along which lies the pier, the place of the incident, and as to the distance between or among, or the density of, the houses lining said street. The house nearest the scene of the crime, which was not even shown by the records to be inhabited, was thirty (30) meters away. Furthermore, the incident occurred between 8:30 o'clock and 10:00 o'clock in the evening with the perpetrators using a gun and a dagger to ensure the silence and cooperation of the victims. As to the presence of people other than the appellant and his co-accused, it was clearly established from the testimony of Emily that they had already left. Thus, on her cross-examination, Emily Punzalan declared: "A ATTY. CAINOY: Q When you were already removing your pants, the three teen-agers as well as the two persons whom, according to you, you happened to pass by then, were they still around? A The three teen-agers who were near our place left before I removed my pants, sir, but the two persons by the banca were still there. 13 B. ATTY. CAINOY: Q What was their only statement when, according to you, they introduced themselves to you and to Graciano Hernandez as barangay tanods? A That it was prohibited for anybody to go to that place, sir. Q What else? A And I told them why it was prohibited when it was a public place. Q At that precise moment, Miss Witness, have you already put on your pants? A Yes, sir, only I was not able to button it. Q What else happened after that? A After they told us that it was prohibited, sir, Gary told them, 'Sorry, we do not know that it was prohibited' and that 'we are not katalo'. Q At that precise moment, did you also noticed (sic) the whereabouts of those two persons whom, according to you, you happened to pass by earlier? A We did not notice the two persons anymore, sir, because Bayani returned." 14 (Emphasis supplied) This would explain why no one heard the shouts of Emily. And even assuming arguendo that the couple remained where they were, it must be pointed out that the robbery was committed near the seashore at a distance of approximately thirty (30) meters from the couple, and the rape was committed at a place twelve (12) meters away from where the robbery was committed. It was quite far to have alerted the said couple to the ongoing rape. LLpr

179 We have previously ruled that it is not necessary that the place where the rape is committed be isolated. In not a few instances, We held that rape can be committed even in places where people congregate: in parks, along the roadside, within school premises, and even inside a house where there are other occupants. 15 The claim of contradictions and inconsistencies in the testimony of Emily is not persuasive. They are on minor matters. We have held that minor inconsistencies do in fact strengthen rather than weaken the witness' credibility. 16 Minor inconsistencies in the testimonies of witnesses are but natural, and ever enhance the* credibility as witnesses as these discrepancies indicate that the responses given were honest and unrehearsed. 17 They even tend to show sincerity and absence of connivance. 18 Besides, as the People explained in its Brief, the change in her version about who took off her pants and underwear can be explained by her state of mind at the time of the rape. She was understandably in shock and too afraid to have clearly remembered such a detail. The alleged contradiction with regard to the identification by Emily of the appellant is more apparent than real. As correctly put by the People in its Brief, no contradiction exists: xxx xxx xxx "Such contention is totally without merit. There is no contradiction nor (sic) inconsistency between the testimony of private complainant that she had not met the accused-appellant prior to the incident and that she knew the latter's first name. The private complainants knew the first names of the two accused since the latter had addressed each other during the robbery incident. As testified by Cpl Ruis, neither of the private complainants knew the full name of the accusedappellant Bayani de los Reyes; in fact, they identified the two accused by their nicknames only, i.e., Annie and Mando." 19 The asserted divergence between the claims of Emily that no other physical violence was inflicted on her aside from the pulling of her hair and that of her companion, Graciano Hernandez, who testified that the appellant "boxed" the victim's thighs is an outright misunderstanding of the testimony of Graciano. All that he said was: "FISCAL VIANZON: Q And what happened else, if any after that? A That if we tell anybody about it we will be killed, sir. Q What else happened after that? A I was told by my companion that she was done harm and she was boxed on her both thighs and she was raped, sir." 20 (Emphasis supplied) It is crystal clear that Graciano did not categorically state that the appellant "boxed" the victim's thighs. As to the claim that the negative finding of spermatozoa supports the appellant's version of the incident, We have said time and again that the absence of spermatozoa cells in the genital organ does not negate rape, the slightest penetration even without emission being sufficient to constitute the offense. 21 In the case at bar, the absence of the sperm cells was explained by the examining rural health physician, Dr. Willie G. Calimbas, in his testimony: A COURT: Q Now, considering that doctor, your finding would conclude that the victim has such sex or intercourse immediately before you examined her? A By the findings that I had, your Honor, all I can say is that there could be or there could not been (sic) any sexual penetration or sexual contact. Q Why do you say so?

180 A Because the Smear done was negative, vaginal wall; the hyperimic of the vaginal wall is strong as when you find something like sperm inside the vagina and this, if the patient is a virgin it could appear as lacerations, this could be stronger than caruncles, however, I said it could be because there are contusions around the vaginal area and vaginal discharge which could also be coming from the outside your Honor. Q Now, if the victim would have washed off her vagina after the contact, would you say that actually your findings would be negative on the sperm cells? A It is a possibility, your Honor. 22 B. FISCAL VIANZON: Q You likewise mentioned a finding vaginal discharge (sic) peri-vaginal orifice, will you please tell us what you mean by this? A This could be discharge from outside or it could be discharge coming from the inside of the vagina so, I just state this to find out if this is significant because this discharge which may come from the outside could be the semen of the male person, sir." The last point raised by the appellant, which has reference to the charge of robbery, is the absence of intent to gain in the taking of the clothes and jewelry as allegedly shown by his professed desire just to teach the victims (Emily and Graciano) a lesson and the subsequent return of the goods the day following the incident. This claim is preposterous and easily burdens one's credulity. For one, the trial court correctly discredited the version of the appellant as incredible. For another, even if appellant's version as to the reason why he wanted to teach them a lesson were to be believed, it must be stressed here that when he entrusted the clothes and the jewelries to his wife, he never told her the reason therefor, much less of his plan to turn them over to the proper authorities. Counsel for appellant brought out on the cross-examination of Cpl. Isidro Ruiz the following testimony which convincingly proves intent of gain: "ATTY. CAINOY: Q Now, when you were able to locate the wife of Bayani de los Reyes, did you ask her the reason why the items, meaning to say the jewelries; seiko watches and one diamond ring were in her possession? A Yes, sir. Q And what was the answer she gave you? A It was entrusted to her by her husband, sir. Q And did you also ask the wife of Bayani de los Reyes if she knew the reason why these jewelries were entrusted to her by her husband? A Yes, sir. Q And what was the answer given to you by the wife of Bayani de los Reyes? A She said for safe-keeping, sir. Q Did she not tell you that the jewelries were entrusted to her by her husband because they will have to turn over these jewelries to proper authorities say, the INP police station of Mariveles, Bataan? A No, sir." 23 (Emphasis supplied) Finally, in his testimony, appellant claimed that he only gathered and brought home Emily's and Graciano's clothes. 24 Yet, he cannot offer any credible explanation as to how it came about that the jewelries of the victims found their way under his bed. 25 We are then of the opinion that the evidence for the prosecution in this case has established beyond all reasonable doubt that appellant committed the crimes of rape and, with his co-accused, the crime of robbery.

181

In rape cases, the following guidelines and principles are well-entrenched: 1. An accusation for rape can be made with facility: it i9 difficult to prove but more difficult for the person accused, though innocent, to disprove it; 2. In view of the intrinsic nature of the crime of rape where two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; 3. The evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense. 26 We believe that the lower court judiciously applied these guidelines in holding appellant liable for the rape. To begin with, both complainants were able to positively identify the accused as one of the two (2) malefactors. More particularly, since Emily was the victim of the assault herself, she naturally came face to face with the accused. We have held that it is the natural reaction of every victim of criminal violence to strive to know the identity of the assailant. 27 And, when a woman says that she has been raped, she says, in effect, all that is necessary to show that rape has been committed and that if her testimony meets the test of credibility, the accused may be convicted on the basis thereof. 28 The lower court also concluded that the testimonies of the witnesses for the prosecution were "positive, categorical, and unequivocal" and given in a direct, coherent, and forthright manner. 29 We are bound by such a finding. 30 Wellsettled is the rule that appellate courts will generally not disturb the findings of the trial court considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless the court has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case. Further confirmation of Emily's account came from Dr. Willie Calimbas, the examining physician who, after examining her physically barely twelve (12) hours after the incident, found the presence of fresh injuries on her body which were explained to have been caused by the force applied on the victim resulting in trauma and hyperemia (blood congestion) due to the forceful penetration of a hard object, like a penis, into the vaginal wall. 31 Finally, the records disclose that appellant's mother and wife offered, on several occasions, to settle the matter amicably. The following testimony of Emily: FISCAL VIANZON: Q Where did the mother and the wife of Bayani de los Reyes approached (sic) you in convection with the case? A They visited me in my home, sir. Q Where? A At San Isidro, sir. Q Do you remember when? A I cannot remember cause it took long before he was jailed and after his incarceration it was then that the mother and wife approached me, sir. COURT: Q What was the purpose of mother and the wife of Bayani in visiting you in your house, if you know? A They were asking for settlement, sir. FISCAL VIANZON: Q Was that the only occasion when the mother and wife of Bayani de los Reyes went to you for the settlement of the case?

182 A Several times, sir. Q How many times? A I can no longer tell you how many times because they visited me several times, they even went to the factory where I work, sir. Q What happened when they went to the factory? A They told me that they would even double my P500.00 and return to me P1,000.00 and they even offering (sic) me watch as a gift but I decline (sic) to accept the same because I told them it was not my birthday." 32 was not rebutted by appellant. As correctly observed by the trial court, the offer of compromise by appellant's mother and wife betrays the guilty conscience of appellant, which can be taken as an implied admission of guilt. 33 As likewise established by the evidence, rape was committed on the occasion of the robbery. From the testimony of Graciano Hernandez, it is conclusive that the two accused divested him of his wallet before physically abusing Emily. Thus: FISCAL VIANZON: Q And what was the answer of the accused? A He told us why we were there while it was prohibited and we did not ask their permission to be there, sir. Q And so, what did they do? A The two of them talked and left for a while for about ten (10) meters away and then return (sic), sir. Q And upon the return, what happened else, if any? A When they returned Bayani de los Reyes got my wallet, sir. Q And how much was contained in your wallet? A My wallet contained P30.00, sir. Q And after getting your wallet, what happened else, if any? A He returned it to me, sir." 34 We disagree, however, with the trial court's appreciation against appellant of the aggravating circumstance of nighttime. This circumstance should not be taken into account unless there is proof that an accused had purposely sought the cover of darkness in committing the crime, or that it facilitated its commission 35 or that he took advantage thereof for the purpose of impunity. 36 Nighttime is aggravating if the offender sought for it in order to realize the crime with more ease 37 or when the accused waited for the night before committing the crime. 38 Nighttime is not especially sought for when the motion to commit the offense was conceived only shortly before its commission. 39 It is not aggravating if it does not concur with the intent or desire of the offender to capitalize on the intrinsic impunity afforded by the darkness of the night. 40 In the instant case, there was only a chance or accidental encounter at nighttime between the victims and the malefactors. It was not proved that the latter had prior knowledge that the former would be at the scene of the incident at any time in the evening of 15 October 1986 or that the appellant or his co-accused were there, or used to be there at nighttime, to commit robbery, rape or any crime upon any person. Nocturnity would not be an aggravating circumstance if it was not purposely sought for and a crime was committed at night upon mere casual encounter. 41 The penalty for the crime of robbery with rape under the second paragraph of Article 294 of the Revised Penal Code is reclusion temporal in its medium period to reclusion perpetua. It consists of three (3) periods, namely: (a) the minimum period, which is reclusion temporal in its medium period; (b) the medium period,

183 which is reclusion temporal in its maximum period; and (c) the maximum period, which is reclusion perpetua. Since the crime was committed without any aggravating or mitigating circumstance, the penalty should be imposed in its medium period, 42 i.e., reclusion temporal in its maximum period. The appellant is, therefore, entitled to the benefit of the Indeterminate Sentence Law. 43 Accordingly, he can be sentenced to a penalty whose minimum shall be within the range of the penalty next lower to that prescribed by the Revised Penal Code as indicated above, and whose maximum shall be reclusion temporal in its maximum period. Accordingly, We hereby modify the sentence imposed by the trial court by imposing upon the appellant the penalty of Ten (10) years and One (1) day of prision mayor as MINIMUM, to Eighteen (18) years and Eight (8) months of reclusion temporal as MAXIMUM. cdphil WHEREFORE, judgment is hereby rendered AFFIRMING, in all respects, the decision appealed from except as to the penalty which is hereby modified as above indicated. As modified, appellant BAYANI DE LOS REYES y PUSTIGO is hereby sentenced to suffer the penalty of Ten (10) years and One (1) day of prision mayor as MINIMUM, to Eighteen (18) years and Eight (8) months of reclusion temporal as MAXIMUM. He shall be fully credited with the period of his preventive imprisonment, if any. Costs against appellant. IT IS SO ORDERED.

[G.R. No. 39519. November 21, 1991.] PEOPLE OF THE PHILIPPINES, petitioner-appellee, vs. DANIEL PINTO, JR. and NARCISO BUENAFLOR, JR., defendants-appellants. SYLLABUS 1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; FULFILLMENT OF DUTY; REQUISITES. In order that the justifying circumstance of fulfillment of a duty under Article 11 of the Revised Penal Code may be successfully invoked, the defense has to prove that these two requisites are present: (a) the offender acted in the performance of a duty and (b) the injury or offense committed be the necessary consequence of the due performance or lawful exercise of such duty. In the absence of the second requisite, the justification becomes an incomplete one thereby converting it into a mitigating circumstance under Articles 13 and 69 of the same Code. 2. ID.; ID.; ID.; ID.; CASE AT BAR. Admittedly, the appellants and the rest of the police force involved, originally set out to perform a legal duty: the service of a search warrant on Bello. In the process, however, the appellants abused their authority resulting in unauthorized and unlawful moves and consequences. Armed with only a search warrant and the oral order to apprehend Bello, they went beyond the ambit of their mission and deprived Bello and two other persons of their lives. While the defense presented proofs that Bello had a string of record in the police blotter for misdeeds ranging from taking the harvest of their hacienda without the permission of his parents to assaulting his stepfather, and that he was "dangerous while under the influence of liquor", there was no proof that he had been convicted of any offense or that he was a dangerous fugitive from justice which would warrant a "shoot-to-kill" order from police authorities. Proof of bad moral character of the victim only establishes a probability that he committed a crime but it certainly cannot be the reason for annihilating him nor may it prevail over facts proven showing that the same

184 victim had been cold-bloodedly killed. As such, the suspicion that Bello was maintaining a private army was not a sufficient justification for his being rubbed out without due process of law. 3. ID.; ID.; ID.; ID.; SOUND DISCRETION AND RESTRAINT DICTATED THAT ACCUSED UNDER THE CIRCUMSTANCE COULD HAVE JUST RENDERED THE JEEP IMMOBILE. A propensity for rash judgment was likewise amply shown at the incident involving the Tiongson children. Since the jeep coming towards them was owned by the Anduizas, the appellants acted obviously in the belief that Bello was its passenger and posthaste they fired upon it even without any reasonable inquiry as to the identity of its passengers. Granting that the police indeed fired a warning shot, sound discretion and restraint dictated that, there being no responding shots from its passengers after the alleged warning shot and considering the condition of the road which was not only muddy but uphill, instead of directing aimless gunburst at the jeep, the most that they could have done was to render the jeep immobile by shooting its tires. That way, they could have verified the identity of the passengers. As it were, they riddled the jeep with bullets injuring in the process innocent passengers who were completely unaware of what they were up against. 4. ID.; ID.; ID.; POLICE OFFICER MUST BEAR IN MIND THAT CRIMINALS ARE ALSO HUMAN BEINGS WITH HUMAN RIGHTS. As in all cases wherein peace officers are accused, this case creates a feeling of frustration in everyone. The crimes committed here ought to have no place in this democratic and civilized society. True it is that a police officer is sometimes left in a quandary when faced with a situation where a decisive but legal action is needed. But, as this Court said in Calderon vs. People and Court of Appeals (96 Phil. 216, 225 [1954]), "(t)he judgment and discretion of public officers, in the performance of their duties, must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and with the spirit and purpose of the law." Police officers must always bear in mind that although they are dealing with criminal elements against whom society must be protected, these criminals are also human beings with human rights. 5. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT NOT JUSTIFIED BY THEORY THAT VICTIMS AUTHORED A SHOOTING. The police theory that Bello authored the shooting of one Salustiano Botin on Christmas eve is neither a justification for his arrest without a warrant. It should be observed that while the police had obtained a search warrant for illegal possession of firearms against Bello even on Christmas day which was supposed to be a holiday, no such effort was made in securing a warrant of arrest for Bello's alleged frustrated killing of Botin. The improbability of the defense evidence through the testimony of Botin himself that Bello had shot him in the evening of December 24, 1970 is bolstered by the same testimony showing that while he was shot by Bello in the presence of the police force who were converging at the junction of Homapon and Mariawa, the same law enforcers were unable to arrest Bello. Besides the fact that no other eyewitness corroborated Botin's testimony even in the face of his own admission that Bello had no reason to shoot him, no complaint was ever lodged against Bello for the alleged shooting. 6. ID.; EVIDENCE; FINDINGS OF EXPERT WITNESS GIVEN WEIGHT. While it is true that the ballistic report reveals that the lead bullet taken from the body of Richard was fired from a Smith & Wesson type firearm and Buenaflor was proven to be carrying a .38 caliber Tell revolver, the findings of expert witnesses or, in this case, the ballistic report pointing to another kind of caliber .

185 38 weapon as the source of Richard's wound only serves as a guide for the courts after considering all the facts of the case. The undisputed fact is that Buenaflor was specifically pointed by Romero as the one who fired his firearm as the Anduiza jeep bearing the Tiongsons passed by. Inasmuch as no evidence that Romero would prevaricate to pin responsibility on Buenaflor was ever presented, there is, therefore, no reason to discredit his testimony. 7. ID.; ID.; MOTIVE; ACCUSED'S MOTIVE PROVIDED A CIRCUMSTANTIAL EVIDENCE TENDING TO SHOW THAT HE INDEED FIRED HIS GUN. In addition to all these, Buenaflor's motive for wanting to do away with Bello has been established. Such motive provided a circumstantial evidence leading to the inference that indeed he fired his gun. According to the unrebutted testimony of Rogelio Escober, an overseer of the Napal hacienda and constant companion of Bello, on November 1, 1970, Buenaflor and another policeman named Santos Urbina, Jr. borrowed Bello's jeep on the pretext that they needed it to transfer Moscoso, the suspect in the Perez killing, to the Albay Police Headquarters. When it was returned, the jeep had bloodstains. Bello and Escober later learned from a PC officer that the jeep had been used in dumping in Guinobatan the body of Moscoso. Confronted by the PC officer, Bello admitted that the jeep was borrowed by Buenaflor and Urbina and agreed to execute a sworn statement on the matter. Consequently, the PC authorities notified Mayor Imperial of the solution of the Moscoso killing. Three days later, Escober and Bello met Urbina who warned Bello, "Kit, if you want to give your statement, just say that I borrowed your jeep for thirty minutes. This is a brotherly advice because something might happen to you." Bello retorted that he would do what was right and that was to tell the truth. Urbina said that it was up to Bello but he repeated that he was giving Bello a brotherly warning that something might happen to him (TSN, August 23, 1973, pp. 4-20). These facts were of course denied by Buenaflor. However, as between the positive declaration of a prosecution witness and the negative denial of the accused, the former deserves more credence. 8. ID.; ID.; CIRCUMSTANTIAL EVIDENCE; COMBINATION OF ALL CIRCUMSTANCES SUFFICIENT TO PRODUCE CONVICTION BEYOND REASONABLE DOUBT. All these pieces of circumstantial evidence point to no other inference than that Pinto and Buenaflor fired their guns in defiance of their superior officer's order only "to find the whereabouts" of Bello and to desist from using their weapons "without clearance from the Chief of Police". Since there is more than one circumstance and the facts from which the inferences are derived are proven, the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 9. CRIMINAL LAW; FELONIES; MISTAKE IN IDENTITY OF VICTIM; NEITHER CAN SAVE ACCUSED FROM CONVICTION NOR MAY IT BE CONSIDERED A MITIGATING CIRCUMSTANCE. The fact that the victims were different from the ones the appellants intended to injure cannot save them from conviction. Aberratio ictus or mistake in the identity of the victim carries the same gravity as when the accused zeroes in on his intended victim. The main reason behind this conclusion is the fact that the accused had acted with such a disregard for the life of the victim(s) without checking carefully the latter's identity as to place himself on the same legal plane as one who kills another willfully, unlawfully and feloniously. Neither may the fact that the accused made a mistake in killing one man instead of another be considered a mitigating circumstance. 10. ID.; CONSPIRACY; GUILT OR CULPABILITY IS IMPOSSIBLE ON BOTH APPELLANTS IN EQUAL DEGREES. It is not even necessary to

186 pinpoint who between Pinto and Buenaflor actually caused the death of Richard or the wounding of Maria Theresa in the presence of proof beyond reasonable doubt that they acted in conspiracy with each other. Prior agreement between the appellants to kill their intended victim is not essential to prove conspiracy as the same may be inferred from their own acts showing joint purpose and design. In this case, such unity of purpose and design is shown by the fact that only the two of them fired their guns when the Anduiza jeep with the Tiongsons passed by. This they did in defiance of the order of their superior not to shoot unless ordered to do so. Conspiracy having been proved, the guilt or culpability is IMPOSABLE on both appellants in equal degrees. 11. ID.; EXEMPTING CIRCUMSTANCE; ELEMENTS. Under Article 11(1) of the Rules of Court, an accused must prove the presence of all the following elements of said exempting circumstance: (a) unlawful aggression, (b) reasonable necessity of the means employed to prevent or repel it, and (c) lack of sufficient provocation on the part of the person defending himself. The presence of unlawful aggression is a condition sine qua non. There can be no self-defense, complete or incomplete, unless the victim has committed an unlawful aggression against the person defending himself. 12. ID.; JUSTIFYING CIRCUMSTANCE; SELF DEFENSE; A MERE THREATENING ATTITUDE OF VICTIM WILL NOT CONSTITUTE UNLAWFUL AGGRESSION. Granting that Rosalio had a bolo, Pinto was not justified in inflicting the wounds sustained by Rosalio because a mere threatening attitude of the victim will not constitute unlawful aggression. Moreover, Pinto's testimony that Rosalio menacingly approached him with a bolo after Buenaflor had released a gunburst directed at the house where Bello was, is contrary to human behavior if not totally ridiculous. On the contrary, by his own admission, Pinto continued firing until he saw Rosalio fell. 13. ID.; ID.; ID.; ACCUSED WHO INVOKES SELF DEFENSE MUST RELY ON THE STRENGTH OF HIS OWN EVIDENCE. An accused who admits indicting fatal injury on his victim and invokes self-defense must rely on the strength of his own evidence and not only on the weakness of that of the prosecution for, even if weak, the prosecution evidence gains more credibility. Unfortunately, in this case, inspite of the fact that the prosecution had only one eyewitness to the killing of Bello and Andes, the appellants had not presented sufficiently strong evidence to shore up their claim of self-defense. 14. ID.; QUALIFYING CIRCUMSTANCE; TREACHERY; KILLING WAS SUDDEN THAT VICTIMS WERE LEFT DEFENSELESS. We agree with the trial court that treachery attended the commission of all four crimes in this case. The killing of Richard Tiongson, Francisco Bello and Rosalio Andes as well as the wounding of Maria Theresa Tiongson were all so sudden that all of them were left defenseless. This is shown not only by the testimonial evidence of the commission of the crimes but also by the nature and location of the wounds of all the victims. The presence of treachery qualifies the killings to murder and the wounding of Maria Theresa to frustrated murder. 15. ID.; AGGRAVATING CIRCUMSTANCES; NIGHTTIME AND EVIDENT PREMEDITATION NOT PROVEN BUT TAKING EVIDENCE OF PUBLIC POSITION CONSIDERED IN CASE AT BAR. Nighttime, however, may not be appreciated as there is no proof that it was specifically sought in the commission of the crime and therefore we deem it absorbed by treachery. Evident premeditation has not been proven beyond reasonable doubt in this case but we find that the appellants indeed took advantage of their public position in perpetrating the crime.

187 xxx xxx xxx

We agree with the trial court that treachery attended the commission of all four crimes in this case. The killing of Richard Tiongson, Francisco Bello and Rosalio Andes as well as the wounding of Maria Theresa Tiongson were all so sudden that all of them were left defenseless. This is shown not only by the testimonial evidence of the commission of the crimes but also by the nature and location of the wounds of all the victims. 134 The presence of treachery qualifies the killings to murder and the wounding of Maria Theresa to frustrated murder. Nighttime, however, may not be appreciated as there is no proof that it was specifically sought in the commission of the crime and therefore we deem it absorbed by treachery. Evident premeditation has not been proven beyond reasonable doubt in this case but we find that the appellants indeed took advantage of their public position in perpetrating the crime. Under Article 248 of the Revised Penal Code, murder is punishable by reclusion temporal in its maximum period to death. There being no mitigating circumstance to temper the penalty and there being only the aggravating circumstance of taking advantage of their public office under Article 14 (1) of the said Code, the proper penalty is death. 135 However, in view of the constitutional abolition of the death penalty, the penalty of reclusion perpetua shall be imposed on the appellants for each of the three murders they committed. For the wounding of Maria Theresa, the penalty imposable, applying Article 50 of the Revised Penal Code, is prision mayor maximum to reclusion temporal medium. There being no reason to further lower the penalty by one degree pursuant to the provision of Article 250, and there being one aggravating circumstance and no mitigating circumstance, the penalty should be within the range of prision mayor maximum to reclusion temporal medium. Applying the Indeterminate Sentence Law, 136 the proper penalty for the frustrated murder of Maria Theresa is six (6) years of prision correccional maximum as minimum to ten (10) years and one (1) day of prision mayor maximum as maximum. The indemnity of eight thousand pesos imposed by the lower court should be respected considering that while there is evidence as to the actual amount she spent while confined at the Sacred Heart Hospital in Legazpi City, there is no proof as to the expenses she incurred after she was transferred to the Camp Crame Hospital in Quezon City. LexLib As in all cases wherein peace officers are accused, this case creates a feeling of frustration in everyone. The crimes committed here ought to have no place in this democratic and civilized society. True it is that a police officer is sometimes left in a quandary when faced with a situation where a decisive but legal action is needed. But, as this Court said in Calderon vs. People and Court of Appeals (96 Phil. 216, 225 [1954]), "(t)he judgment and discretion of public officers, in the performance of their duties, must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and with the spirit and purpose of the law." Police officers must always bear in mind that although they are dealing with criminal elements against whom society must be protected, these criminals are also human beings with human rights. In the words of then Justice Moran in the Oanis case (Supra): "It is, however, suggested that a notorious criminal 'must be taken by storm' without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent

188 attack. Otherwise, we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonable prudent man, condemnation not condonation should be the rule; otherwise we would offer a premium to crime in the shelter of official actuation." WHEREFORE, the decision of the lower court is hereby affirmed subject to the modifications that appellants shall solidarily be liable for the amount of Fifty Thousand (P50,000) for each of the three murders they committed and, for the frustrated murder of Maria Theresa Tiongson, each of them shall suffer the indeterminate penalty of from six (6) years of prision correccional maximum as minimum to ten (10) years and one (1 ) day of prision mayor maximum as maximum. Inasmuch as appellant Daniel Pinto, Jr. had been a police officer for only five months 137 when the crimes were committed, let a copy of this decision be furnished the Office of the President for whatever action may be proper to temper his penalty. 138 SO ORDERED Davide, Jr. and Romero, JJ., concur. Gutierrez, Jr., J., concurs but agree with Justice Bidin. Bidin, J., concur in the results. Since appellants had been sentenced to suffer three (3) life imprisonments, the Indeterminate Sentence Law should no longer be applied.

[G.R. No. 66755. January 23, 1992.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELPIDIO MAGALUNA, accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACTS OF THE TRIAL AND APPELLATE COURTS, GENERALLY NOT DISTURBED ON APPEAL; CASE AT BAR. The Court accords great respect to the factual findings of trial courts, particularly on matters of credibility of witnesses, since the trial judge had the opportunity of observing the attitude and deportment of witnesses while listening to them speak. This general rule applies with special force in the instant case because, as a consequence of appellant's earlier appeal, the Court of Appeals also reviewed, indeed, it twice reviewed, the facts before finally certifying the case to this Court. The Court of Appeals twice affirmed in toto the factual conclusions drawn by the trial court. In his present appeal, appellant has failed to show any basis for departing from the above general proposition and for overturning the conclusions of fact of the trial court and the Court of Appeals. 2. ID.; ID.; ID.; INTRODUCTION OF OTHER TORN GARMENTS OF COMPLAINANT AT THE TRIAL DOES NOT CONSTITUTE FABRICATION OF EVIDENCE; PROSECUTION NOT OBLIGED TO PRESENT ALL ITS EVIDENCE DURING THE PRELIMINARY INVESTIGATION. Appellant seeks to impugn the credibility of complainant by pointing to alleged inconsistencies between her testimony in court and her statements embodied in her affidavit given during the preliminary investigation. During the preliminary

189 investigation, only her torn underwear was presented and appellant asks us to conclude that, therefore, the introduction in evidence of the torn dress and chemise of complainant Judith G. Berte during the trial must have been a mere afterthought and fabrication. We do not believe that the introduction of the torn garments of complainant during the trial constituted fabrication of evidence. Complainant and her sister Emalyn had declared that complainant's dress was torn because of and in the course of appellant's sexual assault upon Judith. On this specific matter, there are no inconsistencies in the declarations of both Judith and Emalyn. To contend, as appellant does, that the introduction of the torn garments during the trial was part of a plot to fabricate evidence, as both pure speculation and a non sequitur; there was no obligation on the part of the prosecution to present all its evidence during the preliminary investigation. 3. ID.; ID.; ID.; MINOR LAPSES DURING DIRECT EXAMINATION RECOUNTING DETAILS OF HUMILIATING EXPERIENCE WHICH ARE PAINFUL TO RECALL DOES NOT AFFECT CREDIBILITY; CASE AT BAR. Complainant, during direct examination, had stated that she had pleaded with Emalyn to "Please, help me"; her affidavit had not set out a similar plea. Further, complainant had declared during direct examination that she had been gagged with a towel by appellant Magaluna inside the bedroom, while her affidavit had indicated that she had been gagged while still in the sala, prior to being dragged into the bedroom by appellant. During cross-examination, complainant reiterated her statement made in her affidavit. We think that complainant's inconsistencies, if that is what they were, regarding her plea for help addressed to Emalyn and the gagging of her mouth merely represented minor lapses during her direct examination, which do not affect her credibility. Such minor lapses are to be expected when a person is recounting details of a humiliating experience which are painful to recall. She was testifying in open court, in the presence of strangers, on an extremely intimate matter, which is not normally talked about in public; such circumstances may be expected to cause witnesses' narratives to be less than letter-perfect. 4. ID.; ID.; ID.; FOUR DAYS DELAY IN REPORTING THE COMMISSION OF RAPE TO THE AUTHORITIES DOES NOT AFFECT CREDIBILITY; NATURAL TENDENCY OF FILIPINOS TO CONCEAL EMBARRASSING OR HUMILIATING EVENTS. That complainant informed her father promptly upon his arrival that she had been assaulted sexually, is a compelling fact. That four (4) days elapsed before the public authorities were notified of the criminal assault upon the chastity of Judith G. Berte, is consistent with the tendency of Filipinos to conceal embarrassing or humiliating events until the victim's family reaches a consensus on the course of action to be taken. In any event, Judith had effectively publicized the rape two (2) days after it had occurred when she informed Dr. Aida Cervantes that she had been sexually assaulted and for that reason, was requesting a physical examination. Emalyn's testimony had corroborated Judith's statement that she had been dragged into the bedroom and in the course thereof, Judith's dress and chemise had been torn which torn garments were submitted as evidence in court. There was, in other words, clear testimonial and physical evidence of the force exercised upon Judith by appellant which culminated in the rape. 5. CRIMINAL LAW; RAPE; PENETRATION NOT EMISSION, CONTROLLING. The important consideration, however, in rape is penetration of the pudenda and not emission of seminal fluid and the former was clearly and convincingly established in this case when Judith declared that she had felt appellant's penis inside her vagina.

190 6. ID.; ID.; FORCE AS AN ELEMENT NEED NOT BE IRRESISTIBLE BUT MERELY SUFFICIENT. For conviction of rape, it is not necessary that the force employed upon the offended woman be of such magnitude as to leave external signs of injury upon her body; it is enough that the force employed was sufficient to consummate the rapist's intent to copulate with the offended woman. 7. ID.; ID.; PENALTY OF RECLUSION PERPETUA, A SINGLE INDIVISIBLE PENALTY. The penalty for rape provided in Article 335 of the Revised Penal Code, as amended, is reclusion perpetua, a single and indivisible penalty, which under the first paragraph of Article 63 of the Revised Penal Code, must be imposed upon a finding of guilt beyond reasonable doubt, regardless of the presence of any mitigating or aggravating circumstance. The provisions of the Indeterminate Sentence Law are consequently inapplicable to the instant case.

[G.R. No. 94008. February 21, 1992.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDGAR B. FERNANDEZ, accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; POSITIVE IDENTIFICATION OF MALEFACTOR; DECISIVE. What is decisive and cannot be denied is his positive identification as the malefactor (People vs. Mustacisa, No. L-51777, 159 SCRA 227 [1988]). It is worthwhile mentioning that Marites, a young girl of seven, lost no time in reporting that painful incident to her father and thereafter to the authorities to the extent of even submitting herself to an embarrassing medical examination in her quest for truth and justice (People vs. Mancilla, G.R. No. 47628, 173 SCRA 373 [1989]. The victim never pointed to Danny Miranda as the one who raped her. It would be unnatural and illogical for a seven (7) year old girl to point to another person as the one who raped her when in truth and in fact, he is not. The harrowing and gruesome experience and the pain will always be remembered and felt by the victim and because of this, Marites could not have mistakenly identified the appellant. Not even the threat of death by the rapist had dissuaded her in reporting and denouncing appellant to the authorities as the person who violated her. No improper motive can be ascribed to Marites other than a desire to tell the truth and redress for a terrible wrong inflicted on her (People vs. Cayago, G.R. No. 47398, 158 SCRA 586 [1988]. 2. ID.; ID.; ID.; PREVAILS OVER DEFENSE OF ALIBI. As to the appellant's defense of alibi, the trial court in disposing of the same, had this to say: The defense of alibi (that he was in school at that time) was not satisfactory. It was not proved convincingly, especially taking into consideration the categorical statement of the offended party that the said accused was the one who really sexually abuse her. The records of the Pangasinan Memorial College, Lingayen Pangasinan shows that the accused, Edgar B. Fernandez, was present in school on March 8, 1985 but on that precise time, there was no showing that he was in his classroom at the time of the commission of the crime which would show his physical impossibility to be in the scene of the crime. Alibi, in order to be given full faith and credit, must be clearly established and must not leave any room for doubt as to its plausibility and verity, it can not prevail over the positive testimonies of the prosecution witnesses who have no motive to testify falsely against the accused (People vs. Manalo, G.R. No. 45088, 135 SCRA 84 [1985] and People vs. Sagario, L-18659, 14 SCRA 468 [1965]). What is irrefutable is that Marites unhesitatingly pointed to appellant as the rapist (People vs. Mustacisa, supra).

191 3. CRIMINAL LAW; STATUTORY RAPE. Rape is committed by having carnal knowledge of a woman who is under twelve years of age (Article 335, par. 3, Revised Penal Code). 4. ID.; PRIVILEGED MITIGATING CIRCUMSTANCES; MINORITY; APPLIED WHERE ACCUSED UNDER EIGHTEEN (18) YEARS OF AGE. At the time of the commission of the offense, appellant was under eighteen (18) years of age. He was exactly sixteen (16) years, three (3) months, and twenty four (24) days old. Evidence shows that appellant was born on November 13, 1968. The appellant is entitled to the mitigating circumstance of minority. 5. ID.; ID.; ID.; ID.; BUT OVER FIFTEEN (15); PENALTY TO BE IMPOSED; INDETERMINATE SENTENCE LAW, APPLICABLE. Under Article 68, par. 2 of the Revised Penal Code, the imposable penalty for the crime of rape shall be the penalty next lower than that prescribed by law, but always in the proper period (People vs. Boduso, No. L-30450-51, 60 SCRA 60 [1974]). The penalty for rape is reclusion perpetua, a single indivisible penalty. Considering that the appellant committed a crime of rape while he was under eighteen (18) but over fifteen (15) years of age, he is entitled to the penalty next lower than that prescribed by law, which is reclusion temporal. We apply the Indeterminate Sentence Law to accused-appellant's case because of the established jurisprudence that what is controlling is the penalty actually imposed and not the penalty imposable under the Revised Penal Code (People vs. Moises, L-32495, 66 SCRA 151, [1975]. This overrules the doctrine enunciated in People vs. Colman, et al., G.R. L-6652-54, 103 Phil. 6, [1958]). 6. ID.; CHILD AND YOUTH WELFARE CODE (PD 603); YOUTHFUL OFFENDER; SUSPENSION OF SENTENCE NOT APPLICABLE. Appellant cannot avail of Article 192 of PD 603, as amended, or the Child and Youth Welfare Code, for the suspension of his sentence. The said provision applies to those youthful offenders who at the time of the commission of the crime were over nine (9) and under fifteen (15) years of age. Appellant was already above sixteen (16) years of age when the crime of rape, which he no doubt committed, occurred. Hence, such provision does not apply to him (Art. 189, P.D. 603, as amended).

[G.R. No. L-42987. March 4, 1992.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICENTE REBULADO, PRIMITIVO REBULADO and ROGELIO SALES, defendants-appellants. DECISION This is an appeal from the June 16, 1975 Decision of the then Court of First Instance of Camarines Sur, Tenth Judicial District, Branch I, presided by Hon. Delfin Vir. Sunga, finding accused-appellants guilty beyond reasonable doubt of the crime of Murder and sentencing accused-appellant Vicente Rebulado to suffer the penalty of reclusion perpetua; and applying the Indeterminate Sentence Law, Primitivo Rebulado and Rogelio Sales were each sentenced to suffer the penalty of Ten (10) Years and One (1) Day of prision mayor, as minimum, to Seventeen (17) Years and Four (4) Months of reclusion temporal, as maximum; to indemnify the heirs of the late Rodolfo Servillon in the sum of P20,000.00, jointly and severally; and to any the costs.

192 In an Information dated December 16, 1969, Provincial Fiscal Edmundo S. Alberto charged accused-appellants with the crime of Murder, allegedly committed as follows: "That on or about the 3rd day of November, 1969, at approximately 6:30 o'clock in the morning, in the barrio of San Ramon, municipality of Nabua, province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, said accused, conspiring and confederating together and mutually helping one another with intent to kill and with evident premeditation and treachery, did then and there willfully, unlawfully and feloniously assault, attack and stab with a kitchen knife and strike with pieces of wood one Rodolfo Servillon, thereby inflicting upon the latter fatal wounds on the different parts of his body which directly caused the death of the said Rodolfo Servillon." All of the accused-appellants pleaded not guilty at the arraignment. As summarized in the People's Brief, the facts of the case are as follows: "At about 6:30 in the morning of November 3, 1969, Edmundo Gallarte, Lorenzo Avila and Rodolfo Servillon, all residents of San Ramon, Nabua, Camarines Sur, on their way to harvest palay, dropped at the store of Juana Tretasco Gallarte, a resident of the same place, to light their cigarettes (pp. 25, 26, TSN, April 6, 1970; pp. 59, 60, TSN, Dec. 14, 1970). "After lighting his cigarette, Rodolfo Servillon sat on a table (p. 26, TSN, Id.). Several minutes later, Vicente Rebulado, Primitivo Rebulado and Rogelio Sales arrived at the store (p. 60, TSN, Dec. 14, 1970). While Rodolfo Servillon was seated on the table, Vicente Rebulado went behind Servillon, and without any warning, stabbed the latter hitting him on the right side of the lumbar region (pp. 26, 32, TSN, Apr. 6, 1970). "While trying to run away after he was stabbed, Servillon was hit on the left forearm by Primitivo Rebulado, and on the back by Rogelio Sales, who were each armed with a piece of wood. Servillon, however, was able to run away from his attackers who pursued him, but gave up after they failed to catch up with him (pp. 30, 31 & 34, TSN, Id.). Edmundo Gallarte and Lorenzo Avila followed Servillon, and caught up with him when the latter was walking in a zigzag manner, and brought him to the house of Alejo Beranza. Servillon was then taken to the clinic of one Dr. Belmonte (pp. 35,36, TSN, Id.). Upon advice of Dr. Belmonte who administered emergency treatment on the critically injured Servillon, the latter was brought to the Camarines Provincial Hospital where he was operated on (p. 67, TSN, Dec. 14, 1970). Medical findings on his (Servillon's) body reveal that he sustained two wounds: (1) a 'stab wound on the lumbar region, right penetrating abdomen, perforating ascending colon, lacerating lower pole of right kidney, massive hematoma posterior peritoneum', and (2) 'external lesions consisting of abrasions, anterior aspect upper third left forearm.' The stab wound was the fatal one which caused Servillon's death, due to Massive Internal Hemorrhage (pp. 3, 4, 5, 6, 8, 9 & 10, TSN, Apr. 6, 1970; Exhs. "B" & "C", pp. 2 & 4, Rec.). At about 8:00 o'clock in the morning of November 3, 1969, a report that a certain Rodolfo Servillon was stabbed by Vicents Rebulado, was received in the Office of the Chief of Police of Nabua, Camarines Sur. Upon the order of the Chief of Police, the suspect Vicente Rebulado was arrested and brought by Police Lt. Teofisto Ayuma to the said Chief of Police who conducted an investigation.

193 Vicente Rebulado gave a written statement (Exit. "D" which was sworn to before Juan Ballecer, Municipal Judge of Nabua, Camarines Sur (p. 55, TSN, Apr. 6, 1970). prcd In his statement to the police, Vicente Rebulado narrated the circumstances surrounding the stabbing of Rodolfo Servillon. He stated that he was arrested for the stabbing of Rodolfo Servillon; that he was the one who stabbed Servillon; that he stabbed Servillon at about 6:30 in the morning of November 3, 1969, because while he (Rebulado) was on his way home to San Antonio, Ogdon, Nabua, Camarines Sur, at about 7:00 o'clock in the evening of November 2, 1969, after he came from the house of Rosy Bagasbas, of San Ramon, Nabua, and whom he was courting, Rodolfo Servillon emerged from a dark place and hit him (Rebulado) with a piece of wood; that he was hit on the left ear with a piece of wood, and on the stomach, with a fist blow; that Servillon assaulted him because he (Servillon) was also courting Rosy Bagasbas; that he returned to the house of Rosy Bagasbas and told the latter and her mother what happened to him; that Rosy Bagasbas and her mother escorted him until he reached a safe place before reaching home; that upon waking up the following morning (Nov. 3, 1969), he related the incident to his father; that his father told him that they settle the case amicably; that he did not want any settlement because he wanted to take revenge on Servillon; that he, together with his father, his brother Primitivo Servillon (sic) and his brother-inlaw Rogelio Sales went to look for Rodolfo Rebulado; that they found Servillon, together with Raymundo Gallarte and Lorenzo Avila, in the store of Juana Tretasco Gallarte, in San Ramon, Nabua, Camarines Sur; that when he saw Servillon seated at the store, he (Vicente Rebulado) without saying any word, approached and stabbed Servillon who thereafter ran away but while running was met and struck by Primitivo with a piece of wood; that his brother-in-law Rogelio Sales stood by and watched what was happening; that after the incident (Vicente Rebulado) went home together with his father, his brother Primitivo, and brotherin-law Rogelio Sales (Exits. "D", "D-1", "E-2", pp. 11-13, Rec.)." The defense of accused-appellants Rogelio Sales and Primitivo Rebulado is alibi, while accused Vicente Rebulado is self-defense. Accused-appellant Rogelio Sales denied any participation in the crime. He testified that at the time of the commission of the crime, he was working on the riceland of Felix Cuadro; that he does not know the persons of deceased Rodolfo Servillon, Edmundo Gallarte and Lorenzo Avila; that he denies the statements of Gallarte and Avila pointing him as one of the accused, and does not know any reason why they would incriminate him in the tragic incident; that he is the brother-in-law of his co-accused Primitivo and Vicente Rebulado who have been living with him in his house for the last six years; and that he was arrested while plowing the ricefield of Felix Cuadro at about 9:00 o'clock in the morning of November 3, 1969 (TSN, Hearing of Dec. 19, 1972, Ibid., pp. 153-169). Felix Cuadro corroborated the testimony of Rogelio Sales. He added that he met Rogelio on his way to look for laborers to plow and harrow his field at four (4:00) o'clock in the morning of November 3, 1969 riding on a carabao; that he was taken to the house of Rogelio's father who was still sleeping, but he was able to engage their services that same morning; that after the father and son took their breakfast, they all left at about 7:00 o'clock the same morning to the ricefield and started to work immediately; that he went home to take his breakfast and to prepare the food for lunch; and that when he returned to the field at about 10:00 or 11:00 in the morning, Rogelio was no longer there and his father informed him that he was arrested by a policeman (TSN, Hearing of Dec. 19, 1972, Ibid., pp. 134-152). prcd

194 Likewise, accused-appellant Primitivo Rebulado denied participation in the killing of Rodolfo Servillon. He testified that he went to the cemetery of Nabua, Camarines Sur on November 2, 1969 at 5:00 o'clock p.m., for the All Souls Day celebration; that his purpose was to see friends and "barkadas" and to visit his dead cousins and relatives, but he was able to name only one and forgot the others; that past 12:00 o'clock midnight of November 3, 1969, he went and slept at the hut of Moises Paranal; that past 6:00 o'clock in the morning of November 3, 1969, he was awakened by Moises Paranal in order to attend the 6:30 mass in the chapel of the cemetery; and that they both went home past 8:00 o'clock a.m. on the same date (TSN, Hearing of July 17, 1972, Ibid., pp. 123-130); and Hearing of March 5, 1974, Ibid., pp. 203-217). Primitivo Rebulado's testimony was corroborated by Moises Paranal who was on vigil for his deceased sister and brother-in-law. However, Paranal testified that Primitivo Rebulado had no immediate relative to watch in the cemetery that night; and that it is only now that he disclosed that he and Primitivo were together at the cemetery when the crime was committed, and hence, could not have participated with his co-accused Vicente Rebulado and Rogelio Sales in the commission of the crime (TSN, Hearing of Apr. 11, 1973, pp. 105-123). Vicente Rebulado, on the other hand, in an obvious attempt to exculpate his coaccused appellants, testified that he and deceased Rodolfo Servillon were alone when the incident that led to the latter's death occurred; that he killed Servillon because on November 1, 1969, after he visited Rosie Bagasbas, the girl they were both courting, Servillon warned him that if he ever goes back to the girl's house, Servillon will kill him; that at 6:30 in the morning of November 3, 1969, while he was passing the store of Juan Gallarte Tretasco, he was called by Servillon who was at the store and who asked him where he was going; that he told Servillon that he was going to visit Rosie Bagasbas; that Servillon boxed him but he was not hit; Servillon then got a piece of wood to arm himself; that he also got a piece of wood and was able to disarm Servillon with his first strike; that they then fought and the deceased Servillon took his scythe which was on the table; that he was able to get his stainless knife and stabbed Servillon; that Servillon ran away after having been hit, and he decided to go home; and that on the way, he surrendered to a policeman who was looking for him after identifying himself (TSN, Hearing of Aug. 8, 1973, Ibid., pp. 170-199). The trial court, in a decision dated June 16, 1975, found all the accused guilty as charged with the crime of Murder. The decretal portion of the said judgment reads: "WHEREFORE, the Court finds the accused Vicente Rebulado, Primitivo Rebulado and Rogelio Sales guilty beyond reasonable doubt of the crime of Murder, hereby sentences the accused, Vicente Rebulado the Penalty of Reclusion Perpetua (Life); applying the Indeterminate Sentence Law hereby sentences each of the accused Primitivo Rebulado and Rogelio Sales to suffer the penalty of, from TEN (10) YEARS and ONE (1) DAY of prision mayor, as minimum, to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of reclusion temporal, as maximum, to indemnify the heirs of the late Rodolfo Servillon in the sum of P20,000.00, jointly and severally and to pay the costs." Accused-appellants Primitivo Rebulado and Rogello Sales appealed the decision of the trial court, while accused Vicente Rebulado chose to serve his sentence. From the records of this case, it appears that only accused-appellant Rogelio Sales has been apprehended and detained at the Provincial Jail of Camarines Sur, in Naga City. Appellant Primitivo Rebulado could no longer be found (Ibid, p. 51).

195 The Brief for Appellant Rogelio Sales, submitted by his counsel de oficio appointed by this Court, raised the following issues: I THE LOWER COURT ERRED IN CONVICTING THE ACCUSED ROGELIO SALES AS CO-CONSPIRATOR OF VICENTE REBULADO. II THE LOWER COURT ERRED IN SENTENCING ACCUSED ROGELIO SALES TO IMPRISONMENT, INDEMNITY AND COSTS. The instant appeal is devoid of merit. Conspiracy in the case at bar is established by the positive testimonies of the prosecution witnesses Raymundo Gallarte and Lorenzo Avila pointing to acts done in concert by the accused to carry out an unlawful design: that all three accused arrived together at the store where the victim was seated together with the prosecution witnesses. Soon thereafter, accused Vicente Rebulado went behind Rodolfo Servillon and stabbed the latter. As Servillon was about to run away, he was hit with a piece of wood on his left forearm and on the back by Primitivo Rebulado and Rogelio Sales, respectively. Notwithstanding the assault on his person, Rodolfo Servillon was able to run away pursued by his assailants who failed to catch up with him. Rodolfo Servillon was later brought to the Provincial Hospital where he succumbed to the injuries inflicted upon him. These facts taken together establish beyond reasonable doubt that appellants acted in concert with a common design. Hence, the act of one conspirator is the act of all. In People vs. Serante (152 SCRA 520 [1987]), this Court held: "For conspiracy to exist it is enough that at the time the offense is committed, the participants had the same purposes and were united in its execution as maybe inferred from the attendant circumstances. This court has repeatedly ruled that conspiracy may be inferred from the acts of the accused themselves when such point to a joint purpose and design. (People v. Catao, 107 Phil. 861 [1960]; People v. Estrada, 130 Phil. 108; 22 SCRA 111; People v. Alcantara, L-26867, June 30, 1970, 33 SCRA 812). Conspiracy having been proved, the act of one conspirator becomes the act of all; and it is of no moment that not all the accused participated in the actual commission of every act constituting the crime (People v. Paredes, et al., 133 Phil. 633 [1968], 24 SCRA 635)." prLL The alibi of Rogelio Sales that he was working in the ricefield of Felix Cuadro in barrio San Antonio, Nabua, Camarines Sur at the time of the commission of the crime does not deserve slightest consideration. Barrio San Antonio is said to be about one (1) or two (2) kilometers from San Ramon of the same municipality where the crime took place. There is no physical impossibility for the accusedappellant Sales to be at the scene of the crime. In any event, the presence of accused-appellant Rogelio Sales and Primitivo Rebulado, as well as the prosecution witnesses Edmundo Gallarte and Lorenzo Avila at the scene of the crime, is confirmed by the statement (Exhibit "D") of accused Vicente Rebulado at the Nabua Police Department on November 3, 1969 at 8:30 a.m., barely two (2) hours after the incident, and subscribed and sworn to before Municipal Judge Juan Ballecer which, among others, states:

196 "Q Did you heed or follow the advice of your father to have this case settled with him (Servillon) ? A No, because I wanted to take a revenge on him so I went to look for Rodolfo Servillon. Q When you were going to San Ramon, do you know who were with you ? A Yes sir, they were my father Damian Rebulado, my brother, Primitivo Rebulado and my brother-in-law Rogelio Sales (Exhibit "D-4"). xxx xxx xxx "Q Were you able to locate Rodolfo Servillon? A Yes sir, in the store of Juana Gallarte Tretasco at San Ramon, Nabua, Camarines Sur. Q What was Rodolfo Servillon doing at the said store? A He was just inside that store together with Lorenzo Avila and Raymundo Gallarte." (Exhibit "D-9", Record, p. 12). It is a settled rule in this jurisdiction that alibi cannot prevail over the positive identification by the prosecution's witnesses of the accused as the perpetrators of the crime especially when there is no physical impossibility for the accused to be at the scene of the crime (People vs. Pecato, 151 SCRA 14 [1987]; People v. Dava, 149 SCRA 582 [1987]; People vs. Inot, 150 SCRA 322 [1987]). In the face of the clear and positive testimonies of the prosecution witnesses regarding the participation of the accused in the commission of the crime, the defense of alibi assumes no probative value and is not credible (People vs. Serante, supra). Besides, there is no evidence to show that the prosecution witnesses who personally know all the accused as they come from the same place were actuated by any sinister motive to impute a crime so grave as murder to accused-appellants Rogelio Sales and Primitivo Rebulado. As a matter of fact, accused Vicente Rebulado, in his affidavit (Exh. D) admits that his co-accused appellants Rogelio Sales and Primitivo Rebulado were with him that fateful morning of November 3, 1969 when the offense complained of occurred. Finally, it must be stated that the findings of facts of the trial court that has the privilege of observing the demeanor of witnesses while on the witness stand, and therefore can discern if these witnesses are telling the truth or not, must not be disturbed and should be given weight. There are no exceptions in the record that justify the acquittal of the accused-appellants (Amarante Heirs vs. Court of Appeals, et al., 155 SCRA 46 [1987]). Cdpr In view of the foregoing considerations, the trial court did not err in finding all the accused guilty beyond reasonable doubt of the crime of murder. WHEREFORE, the judgment appealed from is Affirmed with the modification that accused-appellants Rogelio Sales and Primitivo Rebulado are hereby sentenced to reclusion perpetua without qualification as the Indeterminate Sentence Law is not applicable, among others, to persons convicted of an offense punishable with death penalty or life imprisonment and to those who shall have escaped from confinement or evaded sentence (Sec. 2 of the Indeterminate Sentence Law); and accused-appellants Rogelio Sales and Primitivo Rebulado are ordered to indemnify jointly and severally the heirs of the deceased Rodolfo Servillon in the amount of P50,000.00. No costs. SO ORDERED.

197 [G.R. Nos. 66873-74. May 8, 1992.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRUCTUOSO MANCAO, BENEDICTO MANCAO @ Amay, JOEL MANCAO @ Tiboy, FAUSTO REPONTE, PEDRO OPSIMAR and JUANCHO DECATORIA, accused-appellants. DECISION Some good things never last . . . as the song goes, a saying which truly applies to the instant case wherein a newly-wed couple was attacked just a few hours after their wedding ceremony causing the death of the husband, to the grief and loneliness of the wife. This is an appeal taken by the six appellants from a joint Decision rendered by the Regional Trial Court of Dumaguete City, Branch XXXII, finding appellants Fructuoso Mancao and Benedicto "Amay" Mancao guilty of the crime of Frustrated Murder in Criminal Case No. 3786 and finding the six appellants, Fructuoso Mancao, Benedicto "Amay" Mancao, Joel "Tiboy" Mancao, Fausto Reponte, Pedro Opsimar and Juancho Decatoria, guilty of the crime of Murder in Criminal Case No. 3787. Inasmuch as the two cases arose from the same incident involving the same protagonists, the trial court rendered a joint decision, the dispositive portion of which reads: "WHEREFORE, for all the foregoing considerations, judgment is hereby rendered: 1. In Criminal Case No. 3786, the Court finds accused Fructuoso Mancao and Benedicto Mancao, alias "Amay", guilty beyond reasonable doubt of the crime of Frustrated Murder, penalized under Art. 248 in relation to Arts. 250 and 50 of the Revised Penal Code, but appreciating in favor of Fructuoso Mancao the mitigating circumstance of voluntary surrender, without any aggravating circumstance to offset the same, hereby sentences him, after applying the Indeterminate Sentence Law, to suffer an indeterminate prison term ranging from four (4) years, two (2) months and one (1) day of prision correctional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and co-accused Benedicto Mancao is sentenced to suffer an Indeterminate prison term ranging from six (6) years, and One (1) day of prision mayor to twelve (12) years and one (1) day of reclusion temporal, to indemnify jointly and solidarily offended party Marcelina Pat the sum of P6,000.00 as moral damages and to pay the costs. The weapons used in the commission of the felony are hereby confiscated in favor of the government. The jailer is directed to make the proper reduction of the period during which the defendants were under preventive custody by reason of this case in accordance with law. 2. In Crim. Case No. 3787, the Court finds accused Fructuoso Mancao, Benedicto Mancao, alias "Amay", Joel Mancao, alias "Tiboy", Fausto Reponte, Pedro Opsimar and Juancho Decatoria, guilty beyond reasonable doubt of the crime of Murder, penalized under Art. 248 of the Revised Penal Code, but appreciating in favor of Fructuoso Mancao the mitigating circumstance of voluntary surrender without any aggravating circumstance to offset the same, hereby sentences Fructuoso Mancao to suffer a prison term ranging from seventeen (17) years, four (4) months and one (1) day to twenty (20) years of reclusion temporal; with respect to defendants Benedicto Mancao, alias "Amay"; Joel Mancao, alias "Tiboy"; Fausto Reponte, Pedro Opsimar, and Juancho Decatoria, the Court hereby sentences each one of them to suffer the penalty of reclusion perpetua (life imprisonment), and for all the defendants in this case, to indemnify jointly and severally the heirs of deceased Artemio Pat the sum of

198 P12,000.00 and to pay the costs. The weapons used in the commission of the felony are hereby confiscated in favor of the government." 1 As borne out from the records, the facts of the case are as follows: It was in the morning of October 20, 1979, when Artemio Pat and Lucy Lapira decided to exchange marriage vows. The wedding party was held at the bride's residence in Talosian, Sta. Catalina, Negros Oriental. At about 7:00 in the evening, on their way home to Artemio's home at sitio Malbog, Artemio's group was waylaid and attacked by the six herein appellants. At the time of the attack, Artemio's group was walking on single file along a foot path near the place of appellant Mancaos. Marcelina Pat was ahead, followed by Lucy Lapira, then Artemio Pat and behind him was Melchor Isong. Fructuoso Mancao suddenly attacked Marcelina Pat with a scythe hitting and wounding her on her right arm, while Benedicto Mancao hacked and wounded her forehead and the back of her head with the use of a bolo. 2 It is at this point when Fructuoso Mancao said, "We will kill you all." 3 Almost simultaneously, Artemio Pat was hacked by Joel "Tiboy" Mancao. The two (Artemio and Tiboy) wrestled and grappled with each other. The rest of the defendants ganged up on Artemio using bolos, scythe, "chaco", and bow and arrow. 4 One of the appellants later shouted, "Watch out because Artemio 'Alon' was able to grab a weapon." 5 Accused-appellant Fausto Reponte shot Artemio with an arrow which had a metallic point. (Exhibit "B") Juancho Decatoria wielded his "chaco" which produced a whizzing sound. 6 Lucy Lapira together with Melchor Isong pulled away the wounded Marcelina Pat. For fear of being attacked once more by Fructuoso's group, Marcelina, Lucy and Melchor left the lifeless body of Artemio behind and proceeded for home. Marcelina was admitted and treated at the Bayawan Emergency Hospital, evidenced by a Medical Certificate (Exhibit "C"), sustaining the following injuries: "1. Hacked wound, 1 1/2 inches in length with linear fracture skull, frontal, left;" 2. Incised wound, 1 1/2 inches in length, involving subcutaneous tissue occipital area, medial, left:" 3. Incised wound, 2 1/2 inches in length, involving subcutaneous tissue arm, mid-area anterior surface, right." A post mortem examination (Exhibit "E") was conducted on the cadaver of Artemio Pat at 3:10 P.M., the following day, October 21, 1979 at the place of the incident, the findings of which are the following: "1. Stab wound, 1/4 inch long, penetrating just above the xiphisterval notch at the midline and anterior aspect of the neck, exiting out as a 1/8 inch long wound at the left lateral aspect of the base of the neck." 2. Stab wound, 3 1/2 inches long, penetrating at the level of the 4th intercostal space at the midclavicular line and exiting out as a 1/2 inch long incised wound at the level of 3rd intercostal space, an inch to the midline of the right posterior chest wall." 3. Incised wound, 1 1/2 inches long, 1/8 inch deep at the dorsal or volvar aspect of the left hand."

199 4. Stab wound, 1 1/2 inches long, 3/8 inch deep at the upper 3rd anterolateral aspect of the right leg." 5. Stab wound, 2 inches long 3/8 inch deep at the antero-lateral aspect and middle 3rd of the left leg." 6. Stab wound, 2 inches long, 1/2 inch deep, over the left scapular area of the back." 7. Incised wound, 8 inches long, 3/8 inch deep at the middle 3rd of the left posterior chest wall." CONCLUSION: Death can be attributed to Hypovolmic or circulatory shock secondary to massive loss of blood due to multiple stab wounds." Appellants invoked self-defense in justification for the killing of the deceased and alibi. LLpr Appellants Joel "Tiboy" Mancao, Juancho Decatoria, Fausto Reponte and Pedro Opsimar declared in their testimonies that at the time of the incident, they were in Hagopina, Sta. Catalina. 7 This defense of alibi is the weakest of all defenses in criminal law. Alibi cannot prevail over the positive and credible testimony of the prosecution witnesses that the accused committed the crime. 8 Jurisprudence on this point is so abundant that it is needless to cite any more. For the defense of alibi to prosper, it must not only be shown that the accused was at some other place at the time of the incident but it was physically impossible for the accused to have been at the scene of the crime at the time of its commission. 9 At the time of the incident, all appellants were neighbors of eyewitnesses Marcelina Pat and Melchor Isong; that they were known to the said eyewitnesses and were likewise clearly identified as the assailants. Prosecution witness Marcelina Pat positively identified appellants Joel Mancao, Fausto Reponte, Pedro Opsimar and Juancho Decatoria as being at the scene of the crime and participated in attacking, wounding and eventually killing her son Artemio with the use of bolos, "chaco", scythe and bow and arrow along with appellants Fructuoso Mancao and Benedicto Mancao. 10 Her testimony was corroborated by Melchor Isong. 11 The alibi of appellants Joel Mancao, Fausto Reponte, Pedro Opsimar and Juancho Decatoria that they were at the seashore in Alangilan near Salud Diorpe's house at 6:30 in the afternoon 12 did not discount entirely the possibility that after that time all the appellants went to the scene of the crime. The denial and alibi of said defendants that they were not present is negative in character and cannot overcome the positive testimonies of witnesses who actually saw them at the scene of the crime. Mere denials constitute self-serving negative evidence, which cannot be accorded greater weight than the declarations of credible witnesses who testify on affirmative matters. 13 Fructuoso Mancao alleges that the reason for the incident was that because Artemio Pat destroyed the fence that he put up, which obstructed the footpath which Artemio and his group were using, thereby bringing about an altercation between them. 14 Thereupon, Artemio hacked Fructuoso with a bolo hitting him on the forehead. So, in retaliation, Fructuoso pulled out his scythe and struck Artemio hitting him on the left side of his body. Thereafter, the two exchanged blows with the use of their respective weapons. Marcelina on the other hand, hit

200 Fructuoso with a piece of bamboo to which he responded by hacking and wounding her on the forehead and left arm. Benedicto Mancao's story was most revealing. He testified that while he was going to his sister's house nearby, he saw his father, Fructuoso being hacked by Artemio. Benedicto picked up stones to help his father but was stabbed by Melchor Isong in the abdomen. 15 Benedicto further testified that he ran home but forgot to bring Artemio's bolo. By the foregoing testimonies, Fructuoso wants to impress upon Us that he alone and no one else inflicted the injuries sustained by both Marcelina Pat and Artemio Pat in defense of his person. We are not convinced. It was the wedding day of the deceased Artemio Pat. His bride and mother were with him during the time of the incident. It would be highly unnatural and improbable for a man who has just been married, preparing for that most awaited first night with his wife to engage himself into a homicidal fight. If he were to, he would not have brought his wife and mother with him. Hence, there could not have been any unlawful aggression coming from the deceased. The defense claims that Artemio Pat was armed with a bolo but such bolo was never presented in court nor recovered at the scene of the crime. Dr. Zoselun Zerrudo, the doctor who conducted a post mortem examination on the deceased, testified that the seven wounds sustained by Artemio were not inflicted by the same weapon and by only one person. 16 In fact, one of the wounds sustained by the deceased was a through and through wound measuring 1/4 inch long at its entrance and 1/8 inch long at its exit found at the base of his neck which could likely be caused by an arrow with a metallic point. 17 Definitely, such wound cannot be caused by a scythe, the only weapon appellant allegedly used, as testified to by him. And the evidence points to Fausto Reponte as the culprit who was armed with a bow and arrow during the attack. This led the trial court to believe "that the defendants plotted the ambush and killing of Artemio Pat and the nearkilling of Marcelina Pat. For all of them belong to the same family. Accused Fructuoso Mancao is the father of defendants Benedicto Mancao and Joel Mancao and father-in-law of accused Fausto Reponte, Pedro Opsimar and Juancho Decatoria. All of them lived very close to each other in Fructuoso Mancao's farm. It was easy for them to band together, conferred with each other, and to present a united front against a common foe as what happened to the herein victims." 18 The senseless attack was provoked by a series of incidents starting with a quarrel between Benedicto Mancao and Artemio Pat in a basketball game and culminating in the actuations of the latter in destroying the fence that blocked their usual footpath across the Mancao farm which was planted with peanuts. Treachery was clearly established by the evidence on record. The attack on Artemio's group was so sudden and unexpected. Under cover of darkness, the appellants waylaid, ambushed and suddenly attacked Marcelina Pat and Artemio Pat with deadly weapons. The method of assault and the weapons used was deliberately chosen by the aggressors with the end in view of accomplishing the commission of the crime without risk to themselves and free from the defense of the deceased. Six able-bodied men who were armed with deadly weapons acted in

201 unison and overwhelmed the defenses put up by the deceased in a futile and hopeless fight to save his life against an overpowering force. Conspiracy need not be proved by direct evidence but may be proven through a series of acts done by each of the accused in pursuance of the common unlawful purpose. 19 In the instant case, all of the appellants acted in concert in attacking the deceased and his companions. They encircled Artemio Pat and with the use of their weapons inflicted upon him multiple stab wounds. It is hard to ignore the overwhelming evidence against the appellants. We find the testimony of prosecution's witnesses more convincing, thereby giving their testimonies full weight and credence. At any rate, the rule is that appellate courts will not disturb the factual findings of the trial court since the trial judge is in a better position to ascertain who should be believed and whose testimony should be rejected considering that he saw and heard the testimony of the witnesses in the course of the trial. 20 It is only when the trial court overlooked matters of substance or value which if considered might affect the results that its appraisal on the relative credibility of witnesses should not be sustained, 21 which We do not find in the case at bar. The trial court, however, incorrectly applied the Indeterminate Sentence Law to accused-appellant Fructuoso Mancao in Criminal Case No. 3787. Since the mitigating circumstance of voluntary surrender is appreciated in favor of the accused-appellant, the penalty to be imposed upon him must be one degree lower, which is reclusion temporal. Applying the Indeterminate Sentence Law, the minimum penalty shall at least be within the maximum period of prision mayor, and the maximum penalty shall be anywhere within the maximum period of reclusion temporal. LibLex WHEREFORE, finding no reversible error in the decision appealed from, the same is hereby AFFIRMED with the modification that the penalty to be imposed on Fructuoso Mancao shall be ten (10) years and one (1) day of prision mayor as the minimum penalty to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal as the maximum penalty. The indemnity to be paid to the heirs of the deceased is hereby increased to P50.000.00. 22 Appellant's guilt has been proved with the degree of proof which produces conviction in an unprejudiced mind. With costs against appellants. SO ORDERED.

[G.R. No. 66020. June 22, 1992.] FLAVIO DE LEON, GREGORIO DE LEON and APOLONIO SANTOS, petitioners, vs. THE PEOPLE OF THE PHILIPPINES, and INTERMEDIATE APPELLATE COURT, respondents. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL FINDINGS OF COURT OF APPEALS; RULE AND EXCEPTIONS. It is a well-settled rule that findings of fact of the Court of Appeals are conclusive and binding on the Supreme Court (Fernan v. Court of Appeals, 181 SCRA 546 [1990]; De Ocsio v. Court of Appeals, 170 SCRA 729 [1989]) save only in certain instances, among them: 1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures; 2) when the inference made is manifestly absurd, mistaken or impossible; and 3) when the judgment is

202 premised on a misapprehension of facts (Dichoso v. Court of Appeals, 192 SCRA 169, [1990]). 2. ID.; ID.; ID.; ALLEGATIONS OF PROSECUTION WITNESSES, GIVEN MORE CREDENCE. After a perusal of the testimonies of Reyes and Quinto, this Court concludes otherwise. The narrations are straightforward and consistent. Petitioners' insistence as to the improbability and incredibility of Reyes' and Quinto's testimonies is misplaced. There is nothing incredible in Reyes' capacity to observe an incident at a distance of about ten (10) meters. There is no showing that Reyes suffers from any infirmity that would impair his vision. Isidro Ramos' testimony as to the impossibility for any person in Reyes' location to witness the alleged incident due to the fence which obstructs the view could not be given much credence. In the first place, Ramos cannot be altogether regarded as a disinterested witness inasmuch as he is the brother-in-law of Flavio de Leon's wife. Secondly, as between the statement of Reyes on his actual experience and the answer of Ramos to a hypothetical question, the former should definitely be given more weight inasmuch as it pertains to the specific incident in question while the latter is a mere generalization expressed by someone who even denied his presence at the scene of the alleged incident. 3. ID.; ID.; ID.; IMPAIRED BY MINOR INCONSISTENCIES. The Court of Appeals correctly observed that the inconsistencies and contradictions in the declarations of Reyes and Quinto refer only to minor and collateral matters that do not impair the credibility of the sworn statements and testimonies. This Court has consistently held that minor inconsistencies in the testimony of a witness do not affect his credibility as they refer only to collateral matters which do not touch upon the commission of the crime itself (People v. Arbolante, G.R. No. 96713, October 17, 1991 and other cases cited.) 4. ID.; ID.; ID.; NOT IMPAIRED BY DELAY IN REPORTING THE INCIDENT. It is not uncommon for a witness who is afraid for his life not to report to the police authorities what he has witnessed. Such action should not detract from his credibility (People v. Bustarde, 182 SCRA 554 [1990]; People v. Coronado, 145 SCRA 250 [1986]), Moreover, both witnesses explained that the group of men who accosted the victim included barrio policemen such that they were uncertain if going to the police was advisable. Quinto even thought that Aguinaldo was arrested so he did not find it proper to interfere. The foregoing reasons sufficiently explain Reyes' and Quinto's reaction to the incident. 5. ID.; ID.; ID.; WITNESS CANNOT BE IMPEACHED BY EVIDENCE OF PARTICULAR WRONGFUL ACT WITHOUT CONVICTION BY FINAL JUDGMENT; CASE AT BAR. A witness cannot be impeached by evidence of particular wrongful acts; there must be a showing of previous conviction by final judgment such that not even the existence of a pending information may be shown to impeach him (People v. Arceo, 187 SCRA 265 [1990]; citing Sec. 15, Rule 132 of the Rules of Court). In the present case, Reyes and Quinto are not shown to have been previously convicted by final judgment. Therefore, the facts established as to their alleged illicit activities will not detract from their competence as witnesses. 6. ID.; CRIMINAL PROCEDURE; RIGHTS OF THE ACCUSED; TESTIMONIES DURING PRELIMINARY INVESTIGATION TAKEN BY QUESTION AND ANSWER IN THE PRESENCE OF DEFENDANT OR HIS ATTORNEY WHO HAS OPPORTUNITY TO CROSS-EXAMINE WITNESS SHOULD BE ADMITTED IN EVIDENCE. The issue as to the admissibility of the sworn statements and testimonies of Reyes and Quinto deserves scant consideration at this stage of the case because this Court had already put the issue

203 to rest when it denied the petition for certiorari earlier filed by herein petitioners questioning the decision of the Court of First Instance to admit the transcripts in question. By the express provision of section 1 (f) Rule 115 of the Rules of Court, the testimonies given by witnesses during the preliminary investigation of the case on trial should be admitted into evidence when such testimony was taken by question and answer in the presence of defendant or his attorney, and there was an opportunity for the defendant to cross examine the witness "who is dead or incapacitated to testify or cannot with due diligence be found in the Philippines" (People v. Villaluz, 125 SCRA 116 [1983]). 7. ID.; EVIDENCE; ALIBI; NOT GIVEN CREDENCE WHERE THERE IS PHYSICAL POSSIBILITY OF COMMISSION THEREOF; CASE AT BAR. Gregorio de Leon relied solely on his uncorroborated testimony which in the light of the direct testimonies of Reyes and Quinto can only be viewed as self-serving statements. Apolonio Santos' alibi, on the other hand, although corroborated by the former barrio captain and a member of the traffic division of the Paraaque police force, should likewise fail. It must be noted that the police blotter of the accident which Santos allegedly helped bring to the attention of the authorities does not bear any indication of his participation therein. Moreover, it is not shown that it was physically impossible for him to have participated in the crime considering that the alleged accident happened in the same small barrio. The foregoing circumstances strengthen the conclusion that Santos' testimony cannot prevail over that of Reyes and Quinto. 8. ID.; ID.; ID.; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. Well-entrenched in our jurisprudence is the rule that alibi is a considerably weak defense which cannot prevail over the positive identification of the accused (People v. Bugho, G.R. No. 91849, September 30, 1991; People v. Camarao, 188 SCRA 671 [1990], People v. Repe, 175 SCRA 422 [1989]; People v. Khan, 161 SCRA 406 [1988]). 9. ID.; ID.; GUILT BEYOND REASONABLE DOUBT; CONVICTION MAY BE BASED ON CIRCUMSTANTIAL EVIDENCE. Although the positive identification made by the key witnesses is not on the actual killing of the deceased, all the circumstances testified to are sufficient to convince this Court that the petitioners are the authors of the act charged. It is not only by direct evidence upon which the guilt may be predicated (People v. Cagadas, 193 SCRA 216 [1991]). The accused may be convicted on circumstantial evidence (People v. Torre, 184 SCRA 525 [1990]). 10. CRIMINAL LAW; INDETERMINATE SENTENCE LAW; PENALTY IMPOSED BY LAW APPLIED IN FULL FORCE; PERSONAL CIRCUMSTANCES OF CONVICTS URGED TO BE GIVEN CONSIDERATIONS. This Court would like to stress that it is aware of the fact that the surviving petitioners have advanced in age, the act complained of in the present case having been perpetrated about twenty years ago. At present, Apolonio Santos would be in his late seventies while Gregorio de Leon would be in his late forties. Be that as it may, this Court's duty to apply the full force of the law shall not be compromised. However, it is precisely the province of the indeterminate sentence law to give considerations to the personal circumstances of each convict. And after a review of the sentence which the lower court has imposed, this Court is of the considered opinion that the minimum and maximum periods imposed are still applicable. This Court expresses its confidence that the authorities shall execute this Court's decision in a manner that shall consider the relative conditions of each petitioner.

204

[G.R. No. 86436. August 4, 1992.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOVENCIO DE PAZ, accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT AFFECTED BY THEIR RELATIONSHIP WITH THE VICTIM IN THE ABSENCE OF ILL-MOTIVE TO FALSELY IMPLICATE THE ACCUSED. The fact that Anacorita and Myrna Florendo were the wife and daughter of the victim, respectively, does not necessarily indicate that they are biased witnesses as to impair the credibility of their testimonies which are otherwise positive and clear. Relationship between the victim and the witness does not undermine the credibility of the latter's testimony. Established is the rule that the mere fact that the witness is a relative of the victim is not a valid or sufficient ground to disregard the former's testimony nor does it render the same less worthy of credit, in the absence of ill motive. On the contrary, it would be unnatural for such persons interested in obtaining justice for the victims of the crime to impute the same to any person other than those responsible therefore. Furthermore, when there is nothing in the records which would show a motive or reason on the part of the witnesses to falsely implicate the accused, identification should be given full credit. And when there is no evidence and nothing to indicate that the principal witness for the prosecution was moved by improper motives, the presumption is that he was not so moved, and his testimony is entitled to full faith and credit. 2. ID.; ID.; ALIBI, CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF THE ACCUSED. Anacorita, Myrna, Florita and Solario Florendo knew accused-appellant even before the incident since they were all residing in the same barangay. Thus, Anacorita and Myrna Florendo could not have been mistaken in their identification of the accused-appellant. Moreover, the fact that Anacorita and her children did not run from the scene of the crime and instead cried for help and sought to defend the victim when he was being hacked by the accused-appellant and his two companions made their testimonies highly credible since in spite of the danger to their persons, their first impulse was to help and defend the victim. Accused-appellant's defense of alibi must fail in view of his positive identification by the prosecution witnesses who had known him for years. 3. ID.; ID.; ID.; CANNOT PROSPER UNLESS ACCUSED PROVED THE PHYSICAL IMPOSSIBILITY FOR HIM TO BE AT THE SCENE OF THE CRIME. Alibi is the weakest of all defenses especially in the absence of proof that it would have been physically impossible for said accused to have been at the scene of the crime. To establish alibi, accused must not only show that he was present at some other place at about the time of the commission of the alleged crime but that it was also physically impossible for him to have been at the place where the crime was committed either before, during or after the time he was at such other place, which accused failed to do in the case at bar. 4. ID.; ID.; CONVICTION; NEED NOT BE RENDERED BY THE JUDGE WHO CONDUCTED THE HEARING; REASON THEREFOR. Accusedappellant's contention that the trial judge did not have the opportunity to observe the conduct and demeanor of the witnesses since he was not the same judge who conducted the hearing is also untenable. While it is true that the trial judge who conducted the hearing would be in a better position to ascertain the truth or falsity of the testimonies of the witnesses, it does not necessarily follow that a judge who was not present during the trial cannot render a valid and just decision since the

205 latter can also rely on the transcribed stenographic notes taken during the trial as the basis of his decision. 5. CRIMINAL LAW; MURDER; IMPOSABLE PENALTY; CASE AT BAR. The trial court, however, erred in the penalty imposed for the crime of MURDER qualified by TREACHERY. The penalty prescribed by Article 248 for said crime is reclusion temporal in its maximum period to death. Since the Indeterminate Sentence Law is not applicable in the case at bar there being no generic mitigating or aggravating circumstance, the penalty imposed by the trial court should be modified to reclusion perpetua. 6. ID.; CIVIL INDEMNITY FOR DEATH; RAISED AT P50,000.00. The death indemnity has been increased to P50,000.00 under our present jurisprudence.

[G.R. No. 103299. August 17, 1993.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOPE VIENTE Y MAPILI, accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT AFFECTED BY RELATIONSHIP WITH THE VICTIM. The relationship of Cabatas with the owners of the stolen jeepney neither disqualifies him from testifying nor renders his testimony unworthy of belief considering the lack of showing of any improper motive compelling him to testify falsely against the appellant. The latter's suggestion that "Cabatas was pressured to point to anyone as the probable carnapper since it was he who lost the vehicle subject of this case" is nothing but a self-serving conclusion which finds no support whatsoever. We have held that a witness' relationship to a victim, far from rendering his testimony biased, would even render it more credible as it would be unnatural for a relative who is interested in vindicating the crime to accuse somebody other than the real culprit. Nor is the testimony of a witness discredited by the mere fact that he is an employee of the complainant. 2. ID.; ID.; ID.; NOT AFFECTED BY THE INITIAL RELUCTANCE TO VOLUNTEER INFORMATION TO THE POLICE AUTHORITIES. The allegation that Cabatas failed to forthwith inform Lucila Crispino about the statement he heard from one of the carnappers, viz., "Pareng Lope, patakbuhin mo na ang Jeep!" is traversed by the testimonies of Narciso Cabatas and Mrs. Crispino that the former had informed the latter of the said utterance on the day of the incident. The reticence of Cabatas to immediately reveal the said statement to the police officers was satisfactorily explained: he was then afraid. The natural reluctance of witnesses to volunteer information to the police authorities in criminal cases is a matter of judicial notice. He might have deemed it the better part of valor not to give the name of the accused who was still at large and who probably recognized him. Such reluctance should not affect his testimony. The decisive factor is that he in fact identified the accused. 3. ID.; ID.; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF THE ACCUSED BY WITNESS; CASE AT BAR. Axiomatic is the rule that the said defense cannot prevail over the positive identification of an accused. In the instant case, there is no doubt in our minds that the appellant was positively identified by Cabatas. The efforts of the defense counsel during cross-examination to cast doubt thereon only succeeded in

206 strengthening Cabatas' testimony. Besides, we agree with the observation of the appellee that the appellant's testimony "does not contain any information as to his activities on the date and time of the carnapping incident." In short, he was completely silent regarding vital facts in support of the defense of alibi. His tongue stubbornly refused to express it. Only his witnesses testified on what he did and where he was at the time the carnapping took place. Thus, we have here a situation where, as aptly put by the appellee, "appellant's alibi is not really his," or the witnesses concocted the alibi for the appellant which the latter did not even bother to corroborate. All told, the alibi in question cannot convince any rational mind and miserably fails to cast any dubiety on the positive identification of the appellant. 4. ID.; ID.; SUFFICIENCY THEREOF; NOT DEPENDENT ON THE NUMBER BUT ON THE CREDIBILITY, NATURE AND QUALITY OF TESTIMONY. Three witnesses testified in support of the appellant's defense of alibi will not suffice to exonerate the latter. In determining the sufficiency of evidence, what matters is not the number of witnesses but the credibility, nature and quality of the testimony. Witnesses are weighed, not numbered, and the testimony of a single witness may suffice for conviction if otherwise trustworthy and reliable. The matter of assigning values to declarations at the witness stand is best performed by a trial judge who is in a far advantageous position than us to distinguish more competently the prevaricators among the witnesses from those who testified the truth. 5. CRIMINAL LAW; INDETERMINATE SENTENCE LAW; APPLICATION TO ANTI-CARNAPPING ACT. We agree with the Solicitor General that the trial court erred in imposing upon the appellant a straight penalty of imprisonment for thirty years. The carnapping in this case was committed by means of violence against or intimidation of persons. The penalty prescribed therefor under Section 14 of R.A. No. 6539 is "imprisonment for not less than seventeen years and four months and not more than thirty years." Under Section 1 of the Indeterminate Sentence Law, if an offense is punished by a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by the said law and the minimum shall not be less than the minimum term prescribed by the same. The proper penalty to be imposed should not, therefore, be thirty years, but an indeterminate penalty which is hereby set at seventeen (17) years and four (4) months as minimum to thirty (30) years as maximum.

[G.R. No. 103299. August 17, 1993.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOPE VIENTE Y MAPILI, accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT AFFECTED BY RELATIONSHIP WITH THE VICTIM. The relationship of Cabatas with the owners of the stolen jeepney neither disqualifies him from testifying nor renders his testimony unworthy of belief considering the lack of showing of any improper motive compelling him to testify falsely against the appellant. The latter's suggestion that "Cabatas was pressured to point to anyone as the probable carnapper since it was he who lost the vehicle subject of this case" is nothing but a self-serving conclusion which finds no support whatsoever. We have held that a witness' relationship to a victim, far from rendering his testimony biased, would even render it more credible as it would be unnatural for a relative who is interested in vindicating the crime to accuse somebody other than the real

207 culprit. Nor is the testimony of a witness discredited by the mere fact that he is an employee of the complainant. 2. ID.; ID.; ID.; NOT AFFECTED BY THE INITIAL RELUCTANCE TO VOLUNTEER INFORMATION TO THE POLICE AUTHORITIES. The allegation that Cabatas failed to forthwith inform Lucila Crispino about the statement he heard from one of the carnappers, viz., "Pareng Lope, patakbuhin mo na ang Jeep!" is traversed by the testimonies of Narciso Cabatas and Mrs. Crispino that the former had informed the latter of the said utterance on the day of the incident. The reticence of Cabatas to immediately reveal the said statement to the police officers was satisfactorily explained: he was then afraid. The natural reluctance of witnesses to volunteer information to the police authorities in criminal cases is a matter of judicial notice. He might have deemed it the better part of valor not to give the name of the accused who was still at large and who probably recognized him. Such reluctance should not affect his testimony. The decisive factor is that he in fact identified the accused. 3. ID.; ID.; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION OF THE ACCUSED BY WITNESS; CASE AT BAR. Axiomatic is the rule that the said defense cannot prevail over the positive identification of an accused. In the instant case, there is no doubt in our minds that the appellant was positively identified by Cabatas. The efforts of the defense counsel during cross-examination to cast doubt thereon only succeeded in strengthening Cabatas' testimony. Besides, we agree with the observation of the appellee that the appellant's testimony "does not contain any information as to his activities on the date and time of the carnapping incident." In short, he was completely silent regarding vital facts in support of the defense of alibi. His tongue stubbornly refused to express it. Only his witnesses testified on what he did and where he was at the time the carnapping took place. Thus, we have here a situation where, as aptly put by the appellee, "appellant's alibi is not really his," or the witnesses concocted the alibi for the appellant which the latter did not even bother to corroborate. All told, the alibi in question cannot convince any rational mind and miserably fails to cast any dubiety on the positive identification of the appellant. 4. ID.; ID.; SUFFICIENCY THEREOF; NOT DEPENDENT ON THE NUMBER BUT ON THE CREDIBILITY, NATURE AND QUALITY OF TESTIMONY. Three witnesses testified in support of the appellant's defense of alibi will not suffice to exonerate the latter. In determining the sufficiency of evidence, what matters is not the number of witnesses but the credibility, nature and quality of the testimony. Witnesses are weighed, not numbered, and the testimony of a single witness may suffice for conviction if otherwise trustworthy and reliable. The matter of assigning values to declarations at the witness stand is best performed by a trial judge who is in a far advantageous position than us to distinguish more competently the prevaricators among the witnesses from those who testified the truth. 5. CRIMINAL LAW; INDETERMINATE SENTENCE LAW; APPLICATION TO ANTI-CARNAPPING ACT. We agree with the Solicitor General that the trial court erred in imposing upon the appellant a straight penalty of imprisonment for thirty years. The carnapping in this case was committed by means of violence against or intimidation of persons. The penalty prescribed therefor under Section 14 of R.A. No. 6539 is "imprisonment for not less than seventeen years and four months and not more than thirty years." Under Section 1 of the Indeterminate Sentence Law, if an offense is punished by a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by the said law and the minimum

208 shall not be less than the minimum term prescribed by the same. The proper penalty to be imposed should not, therefore, be thirty years, but an indeterminate penalty which is hereby set at seventeen (17) years and four (4) months as minimum to thirty (30) years as maximum.

[Adm. Matter No. RTJ-92-881. June 22, 1994.] ANTONIO A. GALLARDO, ANTONIO AREVALO, CRESENCIO ECHAVEZ, EMMANUEL ARANAS, PALERMO SIA, RONNIE RAMBUYON, PRIMO NAVARRO and NOEL NAVARRO, petitioners, vs. JUDGE SINFOROSO V. TABAMO, JR., respondent. SYLLABUS 1. CRIMINAL LAW; DANGEROUS DRUGS ACT; PENALTIES; APPLICATION OF INDETERMINATE SENTENCE LAW IN OFFENSES PUNISHED BY SPECIAL LAWS; CASE AT BAR. It should be noted that the accused was charged with violation of B.P. 179 (Dangerous Drugs Act), a special law. Under the Indeterminate Sentence Law, when an offense is punishable by a law other than the Revised Penal Code, the court should sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by law and the minimum shall not be less than the minimum term prescribed by the same. The accused Dagondon should have been sentenced to imprisonment anywhere from six (6) years and one (1) day to twelve (12) years as mandated by B.P. 179. In applying the Indeterminate Sentence Law after finding no mitigating or aggravating circumstances, the minimum penalty originally imposed by respondent Judge should not have been two (2) years, four (4) months and one (1) day but six (6) years and one (1) day. The incorrect minimum penalty was obviously mistakenly arrived at by applying the rule applicable only for crimes punishable under the Revised Penal Code, not a special law like B.P. 179. The basic error of respondent Judge stemmed from his unwarranted assumption that the penalty of imprisonment ranging from 6 years and 1 day to 12 years, provided for the offense involved by Sec. 8 of the governing law, is the same as prision mayor despite the fact that the technical terminology of penalties for felonies in the Revised Penal Code were not used in the Dangerous Drugs Act at that time. He should likewise have readily noted that neither were the terms prision correccional or reclusion temporal used therein and, for that matter, life imprisonment and not reclusion perpetua was used in and imposed under that law then in force. The inexorable conclusion, therefore, is that drug offenses were then considered, not as felonies, but as crimes punished under a special law, hence the provisions of Arts. 13, 64, 71 and 76 of the Revised Penal Code could not be given suppletory effect. Consequently, the indeterminate sentence should have been within the range for offenses punished by special laws as provided in Sec. 1 of the Indeterminate Sentence Law. 2. ID.; ID.; ID.; POLICY OF IMPOSING STRICT PENALTIES FOR VIOLATIONS THEREOF; CASE AT BAR. The policy of the law in imposing strict penalties for violations of the Dangerous Drugs Act cannot be gainsaid. The intendment of the law is to eradicate a menace to our society by a pernicious evil which day in and day out victimizes our youth. To lightly dismiss the respondent judge's mistakes in Criminal Case No. 561 would be to send the wrong signals. 3. ID.; ID.; ID.; POLICY OF IMPOSING STRICT PENALTIES FOR VIOLATIONS THEREOF; CASE AT BAR. The policy of the law in imposing strict penalties for violations of the Dangerous Drugs Act cannot be gainsaid. The intendment of the law is to eradicate a menace to our society by a

209 pernicious evil which day in and day out victimizes our youth. To lightly dismiss the respondent judge's mistakes in Criminal Case No. 561 would be to send the wrong signals. 3. LEGAL AND JUDICIAL ETHICS; JUDGES; DISCIPLINE OF JUDGES; GROSS IGNORANCE OF THE LAW AND GRAVE ARBITRARINESS, A CASE OF. The facts as established in their totality, more particularly respondent Judge's taking cognizance of Special Civil Case No. 465, despite his lack of jurisdiction, his issuance of a temporary restraining order in said case, his imposition of the penalty in Criminal Case No. 561 which was unconscionably unwarranted given the facts and the law applicable, and his reduction of the penalty by the application of two non-existent mitigating circumstances with obvious result of enabling the accused to avail of the Probation Law, demonstrate an unmistakable pattern of highly irregular acts constitutive of gross ignorance of the law and grave arbitrariness. Respondent Judge has a long experience as a judge, having been in the judiciary for over 20 years. It is, therefore, difficult for this Court to sustain the contention that what he had done were mere errors of judgment. In fact, no discretion was required in both instances: the applicable legal provisions are crystal clear and need no interpretation. 4. ID.; ID.; ID.; ID.; PENALTY THEREFOR IN CASE AT BAR. The Court resolved to hold respondent Judge administratively liable for gross ignorance of the law and with grave abuse of discretion, and to impose on him a fine of TEN THOUSAND PESOS (P10,000.00) with a STERN WARNING that a repetition of the same or similar act or acts in the future will be dealt with more severely. DECISION For this Court's consideration is a letter-complaint, dated May 5, 1992 of Governor Antonio A. Gallardo of the Province of Camiguin and other officials of the said province, charging Judge Sinforoso V. Tabamo, Jr. of the Regional Trial Court, Branch 28, at Mambajao, Camiguin with manifest bias and partiality and highly irregular and outrightly illegal acts in connection with two cases filed before his court, namely: cdphil A. Special Civil Case No. 465 entitled "Pedro P. Romualdo vs. Governor Antonio A. Gallardo, et. al." for Injunction, Prohibition, and Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and Restraining Order; and B. Criminal Case No. 561 entitled "People vs. Ruel D. Dagondon, et. at." for Illegal Possession of Indian Hemp (marijuana). In Special Civil Action No. 465, respondent judge issued an Order restraining the continuance of various public works projects being undertaken by the provincial government and the disbursement of funds therefor, allegedly in violation of a 45day ban on public works imposed by the Omnibus Election Code. Complainant alleged that respondent Judge, in spite of the fact that it was the Commission on Elections, not the Regional Trial Court, which had jurisdiction over the case, took cognizance of the same and issued the temporary restraining order. LLjur In Criminal Case No. 561, respondent Judge is accused to have imposed the wrong sentence in violation of specific provisions of the Dangerous Drugs Law, the Indeterminate Sentence Law and the Revised Penal Code in order to afford the accused in said case the right to avail of provisions of the Probation Law.

210

Respondent Judge's actuations, according to complainant, were intended to favor the political faction of Congressman Pedro P. Romualdo in the struggle with the group of Governor Gallardo for political supremacy in the 1992 elections. This Court, in a resolution dated March 18, 1993, referred the administrative matter to Justice Salome A. Montoya of the Court of Appeals for investigation, report and recommendation. Complying with said resolution, Justice Montoya, in her final report, found the evidence as follows: "A. Re: SPECIAL CIVIL ACTION NO. 465:

"It appears that Cong. Pedro P. Romualdo and Gov. Antonio R. Gallardo were both candidates in the May 11, 1992 elections for the positions of congressmen and governor, respectively, of Camiguin. They belonged to opposing political factions and were in a bitter electoral battle. "On April 10, 1992 or about a month before the elections, Cong. Romualdo filed a petition docketed as Special Civil Action No. 465 before the Regional Trial Court of Camiguin (Br. 28) presided over by respondent Judge Tabamo against Gov. Gallardo, the Provincial Treasurer, the Provincial Auditor, the Provincial Engineer, and the Provincial Budget Officer as respondents. In this petition Cong. Romualdo sought to prohibit and restrain the respondents from undertaking and/or pursuing certain public works projects and from disbursing, releasing, and/or spending public funds for said projects, allegedly because, among other reasons, said projects were undertaken in violation of the 45-day ban on public works imposed by the Omnibus Election Code (B.P. Blg. 881); that the public works projects were commenced without the approved detailed engineering plans and specification and corresponding program of works; that the expenditures of the 20% development fund for projects other than for maintenance violated the Local Government Code; that locally funded projects had been pursued without the provincial budget having been first approved, and reviewed by the Department of Budget and Management; and that the illegal prosecution of the said public works projects requiring massive outlay or public funds during the election period was done maliciously and intentionally to corrupt voters and induce them to support the candidacy of Gov. Gallardo and his ticket in the May 11, 1992 elections. "In the afternoon of the same day that the petition was filed, Judge Tabamo issued a temporary restraining order as prayed for by the petitioner Cong. Romualdo, as follows: 'It appearing from the verified petition in this case that great and irreparable damage and/or injury shall be caused to the petitioner as candidate and taxpayer, such damage or injury taking the form and shape occasioned by the alleged wanton, excessive, abusive and flagrant waste of public money, before the matter can be heard on notice, the respondents are hereby Temporarily Restrained from pursuing or prosecuting the project itemized in Annexes 'A' and 'A-1' of the petition; from releasing, disbursing and/or spending any public funds for such projects; from issuing, using or availing of treasury warrants or any device undertaking future delivery of money, goods, or other things of value chargeable against public funds in connection with the said projects.' "In the same Order of April 10, 1993 the judge gave the respondents ten (10) days from receipt of a copy of the petition to answer the same, and set the prayer for the issuance of a preliminary injunction for hearing on April 24, 1992 at 8:30 A.M.

211 "Gov. Gallardo testified that when he received a copy of the restraining order and reviewed the petition filed, being a lawyer, he at once saw that the same was not within the jurisdiction of the Regional Trial Court. He said that the elections were nearing and all their projects were suspended, the laborers could not get their salaries, and the judge had set the hearing of the injunction on April 24, 1992 or very close to the elections of May 11, 1992. Believing that he could not get justice from the respondent court, he decided to go to the Supreme Court where he filed a petition for certiorari (docketed as G.R. No. L-104848) questioning the issuance of the temporary restraining order and the jurisdiction of the court over Special Civil Action No. 465. xxx xxx xxx "On April 13, 1992 a rally or demonstration was held in front of the premises of the Regional Trial Court of Camiguin. People, composed mostly of the unpaid laborers, carried placards which protested the restraining order and urged Judge Tabamo to order the release of their salaries. Most of the placards expressed contempt and ridicule for the judge and referred to him as the 'tuta' of Cong. Romualdo and to the RTC as the 'Romualdo-Tabamo-Court' and 'Romualdo Tabamo-Corruption.' "Respondent Judge Tabamo testified in this regard that the rallyists were laborers affected by the restraining order. They were taken from all over the island of Camiguin and loaded in several cargo trucks chartered by the followers of Gov. Gallardo. Judge Tabamo saw some of his relatives among the rallyists and when he asked them why they were there, he was told that the laborers were gathered on the representation that they would collect their salaries in Mambajao, they were told that they could not receive their salaries because of the restraining order issued by Judge Tabamo, and the laborers did not feel good about it. xxx xxx xxx "In the afternoon of April 23, 1992 Judge Tabamo received a telegram from the Supreme Court in connection with G.R. No. L-104848, the petition for certiorari filed by Gov. Gallardo reading as follows: 'SUPREME COURT IN AN ORDER DATED APRIL 20 IN GR NUMBER 104848 ENTITLED ANTONIO GALLARDO ET AL VERSUS HONORABLE SINFOROSO TABAMO JR ET AL. REQUEST RESPONDENTS TO COMMENT ON PETITION WITHIN TEN DAYS FROM NOTICE AS WELL AS ISSUED TEMPORARY RESTRAINING ORDER EFFECTIVE IMMEDIATELY AND CONTINUING UNTIL FURTHER ORDERS FROM COURT ORDERING RESPONDENTS JUDGE TO CEASE AND DESIST FROM IMPLEMENTING AND ENFORCING YOUR QUESTIONED ORDER DATED APRIL 10, 1992 AND FROM CONTINUING WITH THE PROCEEDINGS IN SPECIAL ACTION NUMBER 465 ENTITLED PEDRO ROMUALDO VERSUS GOVERNOR ANTONIO GALLARDO ET AL STOP FORMAL ORDERS FOLLOWS END. SUPREME COURT ASSISTANT CLERK LUZVIMINDA PUNO.' "After receiving this telegram Judge Tabamo issued an Order on the same day of April 23, 1992 cancelling the hearing of the application for a writ of preliminary injunction which had been previously set for April 24, 1992. He also said that he decided not to go to court on April 24, 1992 in order to avoid being caught in the crossfire between the two great political leaders in his province. "It appears that on April 24, 1992 people came to the premises of the court for the hearing of the application for injunction in SP No. 465. They were composed of followers of both Gov. Gallardo and Cong. Romualdo. Gov. Gallardo said he

212 went there to inform the judge about the temporary restraining order issued by the Supreme Court, thinking that the same had not been communicated to the judge. Cong. Romualdo was then likewise present. The Clerk of Court of Judge Tabamo announced that the case would not be heard any more as the Supreme Court had issued an order for Judge Tabamo not to hear the case. After this announcement, Cong. Romualdo announced to the people that he had already ordered Gov. Gallardo to give the salaries of the laborers and when the latter heard the announcement, he told the people that it was not Cong. Romualdo responsible for the release of the salaries. "Thereafter, there were passionate exchanges of words between the two factions and a rumble occurred among the followers of Cong. Romualdo and Gov. Gallardo, where many were hurt and during which Gov. Gallardo claims his life was placed in danger. "Aristeo Marbella, Jr., who testified in this case for the complainants, said that he was then with Gov. Gallardo and he was choked by Jayjay Romualdo, the eldest son of the congressman; that another son of Romualdo tried to hit him and still another son, Gogo Romualdo, also choked him; that thereafter, Jayjay and Gogo attacked Rollie Gallardo, brother of Gov. Gallardo, and when he (Marbella) turned around, Cong. Romualdo himself choked him and wrestled with him; that he pleaded with the congressman who was his godfather but the latter continued to pull and wrestle with him and then the brother of the congressman pulled his hair and George Romualdo, a son of the congressman, hit him at the back, and he fell down. Marbella said that Gov. Gallardo tried to help him and Rollie Gallardo but was held down by his bodyguards. "Thereafter, Marbella went to the police and reported the matter, as shown in the police blotters of the Mambajao Police Station. He said that he decided not to file a case knowing that the same would fall in the sala of Judge Tabamo and it would be useless as Judge Tabamo is the 'tuta' or tool of Cong. Romualdo. "Another witness for the complainants on rebuttal was Camilo Abanil, who testified that on April 23, 1992 he was with Edmundo Damisa and Ruben Cloma in a Ford Fiera going around the province of Camiguin on request of Gov. Gallardo who asked them to announce to the laborers that they could already collect their salaries from the province; that when they reached the town of Sagay, they were stopped by Mayor Talian and Vice Mayor Mabolo who was angry and said that they were poisoning the minds of the people; that the younger brother of Vice Mayor Mabolo pulled down Damisa from the Ford Fiera where they were riding; that he (witness) went down to pacify the person who pulled Damisa but he was the one mauled; and that he pleaded to the men and to the Mayor, asking the latter to forgive him as they had not committed any fault but only followed Gov. Gallardo. "Abanil said that he too reported the matter to the police station where the incident was placed in the blotter, and that he later had himself examined by a doctor who gave him a medical certificate. Thereafter, he filed a case for slight physical injuries against Tata Mabolo (Crim. Case No. 3488). "Abanil also testified on the incident of April 24, 1992 when he went to the court premises to witness the hearing because he was among those not paid his salary. He said he saw Junar Marbella being mauled by the group of Cong. Romualdo and Rollie Gallardo being chased by the same group; that he saw Gov. Gallardo trying to help his brother and Jun Marbella and when he (witness) tried to go near Gov. Gallardo, he was also chased by the group of Cong. Romualdo who caught him at the steps of the Capitol Building where Cong. Romualdo boxed him, and

213 Dandan Romualdo kicked him, Gogo Romualdo boxed him, and Dandan Romualdo wrestled with him; that he fell to the ground and the group of Cong. Romualdo took turns kicking him; that he has a medical certificate to show the injuries he sustained; and that he at first thought of filing a case but decided not to, believing that the case will fall in the sala of Judge Tabamo who is the 'tuta' or tool of Cong. Romualdo. He further claimed that the reputation of Judge Tabamo in Camiguin is no longer good and that his court is termed RTC or RomualdoTabamo-Court. "Edmundo Damisa, corroborated the testimony of Camilo Abanil on the incident of April 23, 1992 when they went around the province to announce that the laborers can get their salaries already, adding that Mayor Talian told them to leave the municipality of Sagay, otherwise they would be killed. He also testified that on April 24, 1992 he was outside the Capitol Building when he noticed a big commotion in front of the RTC which was about 30 to 40 meters away; that he saw Rollie Gallardo being chased by the men of Cong. Romualdo and saw Junar Marbella being chased and then choked and boxed by the group of the congressman; that he also saw Gov. Gallardo being held tightly by his security men as he wanted to free himself and help Marbella and Rollie Gallardo; that he also saw the group run after and maul Camilo Abanil; that he himself was chased by Cong. Romualdo who was holding a small gun so he ran up the stairs of the Capitol; and that he helped Gov. Gallardo get inside the Capitol because the commotion was already very tense. "Damisan said he had known Judge Tabamo since childhood days; that the judge is not popular and is nicknamed RTC or Romualdo-Tabamo-Court even in the billiard halls and cockpit; and that Judge Tabamo is often seen in the cockpit because he participates in derbies. He denied that Judge Tabamo had told him to look for a lawyer instead of making demands in the streets on April 24, 1992 and said that what Judge Tabamo told him was that it was not easy for him to lift the restraining order because he has children and it is Cong. Romualdo, who is the godfather of one of his children, who can help them; and that Judge Tabamo also said that he knew very well on whose side Damisa was and the latter also knew on whose side he (Judge Tabamo) was. "On January 29, 1993 the Supreme Court rendered its Decision in G.R. No. L104848, the petition for certiorari filed by Gov. Antonio Gallardo, et al. against the respondent Judge Sinforoso V. Tabamo, Jr. and Cong. Pedro P. Romualdo, granting the same. The Supreme Court ruled that the respondent court had no jurisdiction over Special Civil Action No. 465 and ordered its dismissal. The challenged temporary restraining order of April 10, 1992 was set aside. "B. RE: CRIMINAL CASE NO. 561:

"One Ruel Dagondon was charged of Illegal Possession of Indian Hemp (Marijuana) in Criminal Case No. 561 filed before the Regional Trial Court of Camiguin (Branch 28). "In a judgment dated July 18, 1991 the respondent Judge Sinforoso V. Tabamo, Jr. found the accused guilty as charged and sentenced him to an imprisonment for the indeterminate period of from 2 years, 4 months and 1 day of prision correccional in its medium period to 8 years and 1 day of prision mayor in its medium period, and to pay a fine of P6,000.00. "After this judgment was promulgated on July 31, 1991, the accused Dagondon filed a Notice of Appeal on the same day. On August 7, 1991, however, the accused withdrew his Notice of Appeal and instead filed a Motion for

214 Reconsideration of the Judgment on August 9, 1991, praying that the penalty imposed upon him be reconsidered and that the following circumstances be considered as mitigating in his favor: (1) that the accused did not intend to commit so grave a wrong, (2) extreme poverty of the accused, (3) lack of proper education, and (4) voluntary surrender. The respondent Judge asked Public Prosecutor Julio A. Vivares to comment on the motion. The latter filed a Comment dated August 19, 1991 stating that the bases for the motion for reconsideration are matters that should have been established during the trial for the appreciation of the court and that even if these circumstances were directly or indirectly touched during the presentation of the defense of the accused, their acceptability or credibility is left to the sound discretion of the judge. "On August 26, 1991 respondent Judge issued an Order modifying the Judgment dated July 18, 1991 by amending the penalty imposed on the accused Dagondon to a minimum of 2 years, 4 months and 1 day of prision correccional in its medium period to 6 years of prision correccional in its maximum period, 'in view of the mitigating circumstances of extreme poverty and voluntary surrender.' "This modified judgment was promulgated in open court on August 30, 1991 in the presence of the accused Dagondon and his counsel. "Subsequently, the accused Dagondon applied for probation, which the respondent judge granted in an Order dated November 13, 1991. "Complainants charge that Judge Tabamo modified the penalty so that Dagondon can apply for probation, upon orders of Cong. Pedro P. Romualdo who was approached by a close relative of Dagondon. "In support of this allegation, the complainants presented only the bare testimony of Ceferino E. Chan Jr., a former process server in the court of the respondent judge. Chan testified in this regard that he was employed as process server in Branch 28 from January, 1978 to April 1992 when he took a leave of absence; that he is familiar with Criminal Case No. 561 because sometime in August, 1991 he served a copy of an Order modifying the judgment to the mother of Ruel Dagondon as the latter was then not in the house; and that he told Dagondon's mother that it was good that the decision was changed and the latter answered that they had gone to Cong. Romualdo to ask for help. "Chan further testified that he resigned from his position as process server sometime in July, 1992 because the people in Camiguin no longer respect the court and even make fun of it, like saying that the RTC means RomualdoTabamo-Court; that people would also say that it one wants to win a case in the sala of Judge Tabamo, he should first kiss the hand of Cong. Romualdo; and that people used to ask where else they could go since the court is already controlled by Cong. Romualdo. He stated that Cong. Romualdo often goes to the chambers of Judge Tabamo sometimes only in shorts and T-shirts. "The respondent judge presented Alfreda Daiz, OIC of Clerk of Court of Branch 28 of the RTC of Camiguin. She testified that although Chan did not tell her the real reason for his resignation from the court, there was a time that Chan told them that his mother wanted him to administer their vast idle lands because even they, the owners, did not know the location and boundaries of their lands; and that Chan also had the plan to put up a business, particularly that of selling motor parts, because he noticed the motorcycle drivers travel as far as Cagayan de Oro just to buy parts for their motorcycles.

215 "Judge Tabamo denied that he had sent Chan to serve a copy of the modified decision to the residence of Dagondon. He stated that the modified decision was promulgated in open court on August 30, 1991, during which the accused was present with his counsel, hence there was no need to serve a copy of the decision in his house. The judge maintained that in all his 23 years in the judiciary it was never his practice to serve copies of decisions in criminal cases to parties because they are promulgated in open court and that his practice was to furnish their counsels after the decision is read and that in the Dagondon case the lawyer was furnished a copy of the modified judgment in open court. He added that if Chan had served a copy of the decision before it was promulgated, then Chan had leaked it out and should have been made to answer for the act had he known earlier about it. "At any rate, Judge Tabamo points out that Chan has not presented any proof to show that he served a copy of the decision to Dagondon's mother and the records of the case indeed do not show that the alleged service was made. "Judge Tabamo denied that Cong. Romualdo goes often to his chambers in shorts and T-shirts, since the congressman stays most of the time in Manila and goes home only for special occasions. He explained that Cong. Romualdo used to go around the province to inspect his projects and visit his leaders and constituents, in the same manner that Gov. Gallardo, being a lawyer, makes it a point to visit the offices of the Register of Deeds, the fiscals, the courts and other offices and engage the officials in conferences regarding matters of vital concern, like the construction of the Hall of Justice. "Judge Tabamo said that he had to maintain a healthy relationship with the officials of the province. Incidentally, the Mayor of Mambajao is the wife of Cong. Romualdo. "Judge Tabamo further testified that before Chan resigned on July 1, 1992, the latter went on leave to campaign for his father who ran for mayor of Mambajao; that Chan's father lost in the elections but Chan refused to go back to work; and that he had to send Alfreda Daiz to tell Chan to go back to work or to resign. Judge Tabamo also said that Chan was bitter because a sister of his lost a estafa case in the court and a brother-in-law of Chan also lost his first case before the court. "The complainants point out in regard to Criminal Case No. 561 that the court considered the mitigating circumstance of voluntary surrender in favor of Dagondon when the records show that he was arrested in a buy-bust operation; and that the court imposed a maximum of six (6) years and one (1) day provided under B.P. Blg. 179 for the offense committed by Dagondon." FINDINGS RE: SPECIAL CIVIL ACTION NO. 465 It may be conceded that on the basis alone of the actuations of respondent Judge in relation to Special Civil Case No. 465, there may be no clear and convincing evidence that respondent Judge had acted with manifest bias and partiality for Cong. Romualdo. prLL The staging of the rally in front of the courthouse on April 13, 1992 cannot be imputed to respondent Judge. Obviously, the rally was orchestrated by the group of Gov. Gallardo who picked up the participants from the different parts of the province. Also, the chaos that took place on April 24, 1992 after this Court set aside the temporary restraining order issued by respondent Judge was occasioned by the attempt of Cong. Romualdo to get the credit for the fact that the laborers

216 would now be paid. This was resented by Gov. Gallardo and his followers, resulting in the clash between the two contending groups. The motive of Gov. Gallardo in initiating the rally is not hard to find. He had sponsored a number of public works projects and hired hundreds of laborers, which fact boosted his chances of political victory. When the projects were stopped and the laborers could not get paid, he had to find a spacegoat, thus, the rally against respondent Judge. LLjur However, respondent Judge can hardly justify his acts not only of entertaining Special Civil Case No. 465 and issuing a temporary restraining order stopping the prosecution of the public works projects on the ground that it violated the 45-day ban on public works imposed by the Omnibus Election Code, but also, as will be discussed later, of imposing a wrong penalty in Criminal Case No. 561 and, almost simultaneously, reducing the penalty with the evident purpose of allowing the accused to avail of the benefits of the Probation Law. Being an experienced judge it is highly inconceivable that he was not aware of Zaldivar vs. Estenzo (23 SCRA 533) where this Court categorically held that considering that the COMELEC is vested by the Constitution with the exclusive charge of the enforcement of all laws relative to the conduct of elections, the assumption of jurisdiction by the trial court over a case involving the enforcement of the Election Code "is at war with the plain constitutional command, the implementing statutory provisions, and the hospitable scope afforded such grant of authority so clear and unmistakable in recent decisions." RE: CRIMINAL CASE NO. 561

We agree with respondent Judge that the testimony of Ceferino E. Chan. Jr. hardly deserves any credence. Respondent Judge emphasized without contradiction that he had never served copies of his decisions in criminal cases to the parties; he promulgated his decisions in open court and thereafter furnished copies thereof to counsels. If, indeed Chan served a copy of respondent Judge's order modifying his decision to the mother of Ruel Dagondon, during which the mother allegedly blurted out her having gone to Cong. Romualdo to ask for his help to reduce her son's penalty, proof of service of the order to the accused's mother should have been presented in evidence. The bare testimony of Chan lacks any corroboration. Neither was Chan's declaration that Cong. Romualdo frequented respondent Judge's chambers buttressed by any independent proof. Respondent Judge admitted though that at times, Cong. Romualdo would make official visits to his court regarding matters like the construction of the Hall of Justice, in the same way that he would also visit other provincial offices. prcd Nonetheless, the facts as established in their totality, more particularly respondent Judge's taking cognizance of Special Civil Case No. 465, despite his lack of jurisdiction, his issuance of a temporary restraining order in said case, his imposition of the penalty in Criminal Case No. 561 which was unconscionably unwarranted given the facts and the law applicable, and his reduction of the penalty by the application of two non-existent mitigating circumstances with obvious result of enabling the accused to avail of the Probation Law, demonstrate an unmistakable pattern of highly irregular acts constitutive of gross ignorance of the law and grave arbitrariness. Respondent Judge has a long experience as a judge, having been in the judiciary for over 20 years. It is, therefore, difficult for this Court to sustain the contention that what he had done were mere errors of judgment. In fact, no discretion was required in both instances: the applicable legal provisions are crystal clear and need no interpretation.

217

In his July 18, 1991 judgment in Criminal Case No. 561 (People vs. Dagondon, et al.), respondent judge found the accused guilty as charged of Illegal Possession of Indian Hemp (marijuana) and sentenced him to imprisonment for an indeterminate period of from two (2) years, four (4) months and one (1) day of prision correccional in its medium period to eight (8) years and one (1) day of prision mayor in its medium period. Additionally, the accused was ordered to pay a fine of Six Thousand Pesos (P6,000.00). On the same day judgment was promulgated, the accused filed a notice of appeal which he later withdrew in favor of a Motion for Reconsideration of Judgment praying that the circumstances of voluntary surrender, extreme poverty and lack of proper education be considered as mitigating in his favor. On August 26, 1991, respondent judge issued an order amending the penalty imposed to a minimum of two (2) years, four (4) months and one (1) day of prision correccional in its medium period of six (6) years of prision correccional in its maximum period. In modifying the judgment, the alleged mitigating circumstances of extreme poverty and voluntary surrender were taken into consideration by the respondent judge. The reduction of the penalty enabled the accused, Ruel Dagondon to apply for probation which was granted by respondent Judge in an Order dated November 13, 1991. cdll It should be noted that the accused was charged with violation of B.P. 179 (Dangerous Drugs Act), a special law. Under the Indeterminate Sentence Law, when an offense is punishable by a law other than the Revised Penal Code, the court should sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by law and the minimum shall not be less than the minimum term prescribed by the same. The accused Dagondon should have been sentenced to imprisonment anywhere from six (6) years and one (1) day to twelve (12) years as mandated by B.P. 179. In applying the Indeterminate Sentence Law after finding no mitigating or aggravating circumstances, the minimum penalty originally imposed by respondent Judge should not have been two (2) years, four (4) months and one (1) day but six (6) years and one (1) day. The incorrect minimum penalty was obviously mistakenly arrived at by applying the rule applicable only for crimes punishable under the Revised Penal Code, not a special law like B.P. 179. The basic error of respondent Judge stemmed from his unwarranted assumption that the penalty of imprisonment ranging from 6 years and 1 day to 12 years, provided for the offense involved by Sec. 8 of the governing law, is the same as prision mayor despite the fact that the technical terminology of penalties for felonies in the Revised Penal Code were not used in the Dangerous Drugs Act at that time. He should likewise have readily noted that neither were the terms prision correccional or reclusion temporal used therein and, for that matter, life imprisonment and not reclusion perpetua was used in and imposed under that law then in force. The inexorable conclusion, therefore, is that drug offenses were then considered, not as felonies, but as crimes punished under a special law, hence the provisions of Arts. 13, 64, 71 and 76 of the Revised Penal Code could not be given suppletory effect. Consequently, the indeterminate sentence should have been within the range for offenses punished by special laws as provided in Sec. 1 of the Indeterminate Sentence Law. Cdpr To compound his error, respondent Judge considered in favor of the accused the mitigating circumstances of extreme poverty and voluntary surrender. Justice Montoya noted: "Extreme poverty is not among the mitigating circumstances enumerated in Article 13 of the Revised Penal Code and it is doubtful whether it may be

218 considered as a circumstance of a similar nature or analogous to those mentioned in said Article. On the other hand, there appears to be no voluntary surrender on the part of the accused because the decision itself states that the accused was arrested by the authorities in a buy-bust operation and was brought to the police station in Mambajao, and later to the PC-INP Headquarters at Camp Gen. Bonifacio Aranas. In stating that there was voluntary surrender, the respondent postulated in his Order modifying the judgment that the accused, after committing the crime and having all the chances to escape, voluntarily gave himself up to the authorities." It might, perhaps, have been easy for this Court to act with extreme leniency if the only mistake committed by respondent Judge was the application of Article 64 of the Revised Penal Code to an offense punishable by a special law. However, the pattern of the "errors" committed one after another, which eventually enabled the respondent Judge to apply the provisions of the Probation Law in letting off the accused with a virtual slap in the wrist was so gross as to be unconscionable. Considering his experience in the bench and the ready availability of legal sources and materials from which he could check and verify his findings and conclusions, respondent Judge was clearly negligent in misapplying the law. He knew or ought to know that our laws impose severe penalties on violations of our dangerous drugs laws; consequently, he should have been alerted to the possibility of error when the penalty imposed was finally reduced to a ridiculously lenient one. The inexplicably low penalty which respondent Judge meted out on the accused in Criminal Case No. 561, was certainly out of proportion to the crime for which the latter had been convicted of. The policy of the law in imposing strict penalties for violations of the Dangerous Drugs Act cannot be gainsaid. The intendment of the law is to eradicate a menace to our society by a pernicious evil which day in and day out victimizes our youth. To lightly dismiss the respondent judge's mistakes in Criminal Case No. 561 would be to send the wrong signals. The Office of a judge exists for one solemn end to promote justice by administering it fairly and impartially. The judge is the visible representation of the law and justice. A judge who, through gross ignorance of the law or serious misconduct frustrates the ends of justice commits a rank disservice to the cause of justice which calls for the application of appropriate disciplinary measures (Villa vs. Amonoy, 194 SCRA 48 [1991]). Finally, respondent Judge failed to meet the standard mandated by Rules 3.01 and 3.02 of Canon 3 of the Code of Judicial Conduct, to wit: "Rule 3.01 A judge shall be faithful to the law and maintain professional competence. "Rule 3.02 In every case, a judge shall endeavor diligently to ascertain the fact and the applicable law unswayed by partisan interests, public opinion or fear of criticism." ACCORDINGLY, the Court resolved to hold respondent Judge administratively liable for gross ignorance of the law and with grave abuse of discretion, and to impose on him a fine of TEN THOUSAND PESOS (P10,000.00) with a STERN WARNING that a repetition of the same or similar act or acts in the future will be dealt with more severely. cdrep SO ORDERED.

219

[G.R. No. 93028. July 29, 1994.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARTIN SIMON y SUNGA, ** respondent. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESS; WHEN MADE POSITIVELY, STRAIGHTFORWARD AND CORROBORATED, DESERVES GREATER WEIGHT; CASE AT BAR. After an assiduous review and calibration of the evidence adduced by both parties, we are morally certain that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale took place and his testimony was amply corroborated by his teammates. As between the straightforward, positive and corroborated testimony of Lopez and the bare denials and negative testimony of appellant, the former undeniably deserves greater weight and is more entitled to credence. 2. ID.; ID.; ID.; DISCREPANCY ON MINOR MATTER; NEITHER AFFECTS INTEGRITY OF THE EVIDENCE NOT THAT OF THE WITNESS. Appellant would want to make a capital of the alleged inconsistencies and improbabilities in the testimonies of the prosecution witnesses. Foremost, according to him, is the matter of who really confiscated the marijuana tea bags from him since, in open court, Pejoro asserted that he had nothing to do with the confiscation of the marijuana, but in the aforementioned "Receipt of Property Seized/Confiscated," he signed it as the one who seized the same. Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really matter since such is not an element of the offense with which appellant is charged. What is unmistakably clear is that the marijuana was confiscated from the possession of appellant. even, assuming arguendo that the prosecution committed an error on who actually seized the marijuana from appellant, such an error or discrepancy refers only to a minor matter and, as such, neither impairs the essential integrity of the prosecution evidence as a whole nor reflects on the witnesses' honesty. Besides, there was clearly a mere imprecision of language since Pejoro obviously meant that he did not take part in the physical taking of the drug from the person of appellant, but he participated in the legal seizure or confiscation thereof as the investigator of their unit. 3. ID.; CRIMINAL PROCEDURE; ENTRAPMENT; WHEN MAY BE RELIED UPON BY THE COURT. The Court is aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is susceptible to mistake, harassment, extortion and abuse. Nonetheless, such causes for judicial apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not effected in a haphazard way, for a surveillance was conducted by the team before the buy-bust operation was effected. No ill motive was or could be attributed to them, aside from the fact that they are presumed to have regularly performed their official duty. Such lack of dubious motive coupled with the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, should prevail over the self-serving and uncorroborated claim of appellant of having been framed, erected as it is upon the mere shifting sands of an alibi. To top it all, appellant was caught red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert the charge, he does not appear to have plausibly done so. 4. ID.; ID.; WARRANTLESS ARREST AND SEIZURE, WHEN VALID; CASE AT BAR. Appellant contends that there was neither a relative of his nor

220 any barangay official or civilian to witness the seizure. He descries the lack of pictures taken before, during and after his arrest. Moreover, he was not reported to or booked in the custody of any barangay official or police authorities. These are absurd disputations. No law or jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a relative, a barangay official or any other civilian, or be accompanied by the taking of pictures. On the contrary, the police enforcers having caught appellant in flagrante delicto, they were not only authorized but were also under the obligation to effect a warrantless arrest and seizure. 5. ID.; EVIDENCE; WHEN OBTAINED IN VIOLATION OF THE RIGHT OF A PERSON UNDER CUSTODIAL INVESTIGATION; INADMISSIBLE; CASE AT BAR. Contrary to appellant's contention, there was an arrest report prepared by the police in connection with his apprehension. Said Booking Sheet and Arrest Report states, inter alia, that "suspect was arrested for selling two tea bags of suspected marijuana dried leaves and the confiscation of another two tea bags of suspected marijuana dried leaves." Below these remarks was affixed appellant's signature. In the same manner, the receipt for the seized property, hereinbefore mentioned, was signed by appellant wherein he acknowledged the confiscation of the marked bills from him. However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's conformance to these documents are declarations against interest and tacit admissions of the crime charged. They were obtained in violation of his right as a person under custodial investigation for the commission of an offense, there being nothing in the records to show that he was assisted by counsel. Although appellant manifested during the custodial investigation that he waived his right to counsel, the waiver was not made in writing and in the presence of counsel, hence whatever incriminatory admission or confession may be extracted from him, either verbally or in writing, is not allowable in evidence. Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicate a suspect. 6. ID.; ID.; CREDIBILITY OF WITNESS; RULE; APPLICATION IN CASE AT BAR. The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must not only proceed from the mouth of a credible witness but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. The evidence on record is bereft of any support for appellants allegation of maltreatment. Two doctors, one for the prosecution and the other for the defense, testified on the absence of any tell-tale sign or indication of bodily injury, abrasions or contusions on the person of appellant. What is evident is that the cause of his abdominal pain was his peptic ulcer from which he had been suffering even before his arrest. His own brother even corroborated that fact, saying that appellant has had a history of bleeding peptic ulcer. Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for not divulging the same to his brother who went to see him at the camp after his arrest and during his detention there. Significantly, he also did not even report the matter to the authorities nor file appropriate charges against the alleged malefactors despite the opportunity to do so and with the legal services of counsel being available to him. Such omissions funnel down to the conclusion that appellant's story is a pure fabrication. 7. CRIMINAL LAW; VIOLATION OF DANGEROUS DRUGS ACT; ELEMENT; PRESENT IN CASE AR BAR. Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated from his predicament from his predicament since his criminal participation in the illegal sale of marijuana has been sufficiently proven. The commission of the offense of illegal sale of prohibited drugs requires merely the consummation of the selling transaction which happens the moment the buyer receives the drug

221 from the seller. In the present case, and in light of the preceding discussion, this sale has been ascertained beyond any peradventure of doubt. Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. We take this opportunity to once again reiterate the doctrinal rule that drugpushing, when done on a small scale as in this case, belongs to that class of crimes that may be committed at any time and in any place. It is not contrary to human experience for a drug pusher to sell to a total stranger, for what matters is not an existing familiarity between the buyer and seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves. While there may be instances where such sale could be improbable, taking into consideration the diverse circumstances of person, time and place, as well as the incredibility of how the accused supposedly acted on that occasion, we can safely say that those exceptional particulars are not present in this case. 8. CRIMINAL LAW; REPUBLIC ACT NO. 6425, AS AMENDED BY REPUBLIC ACT NO. 7659; PENALTY; CONSTRUED; CASE AT BAR. Probably through oversight, an error on the matter of imposable penalties appears to have been committed in the drafting of the aforesaid law, thereby calling for and necessitating judicial reconciliation and craftsmanship. As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That penalty, according to the amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana involved is 750 grams or more. The same error has been committed with respect to the other prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting provisions in order to give effect to the whole law, we hereby hold that the penalty to be imposed where the quantity of the drugs involved is less than the quantities stated in the first paragraph shall range from prision correccional to reclusion temporal, and not reclusion perpetua. This is also concordant with the fundamental rule in criminal law that all doubts should be construed in a manner favorable to the accused. 3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the imposable range of penalties under the second paragraph of Section 20, as now modified, the law provides that the penalty shall be taken from said range "depending upon the quantity" of the drugs involved in the case. The penalty in said second paragraph constitutes a complex one composed of three distinct penalties, that is, prision correccional, prision mayor, and reclusion temporal. In such a situation, the Code provides that each one shall form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum period. Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances determine which period of such complex penalty shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is its specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug subject of the criminal transaction. Accordingly, by way of exception to Article 77 of the Code and to subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid component penalties shall be considered as a principal imposable penalty depending on the quantity of the drug involved. Thereby, the modifying circumstances will not altogether be disregarded. Since each component penalty of the total complex penalty will have to be imposed separately as determined by

222 the quantity of the drug involved, then the modifying circumstances can be used to fix the proper period of that component penalty, as shall hereafter be explained. It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid disposition thereon that, unless there are compelling reasons for a deviation, the quantities of the drugs enumerated in its second paragraph be divided into three, with the resulting quotient, and double or treble the same, to be respectively quotient, and double or treble the same, to be respectively the bases for allocating the penalty proportionately among the three aforesaid periods according to the severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to 749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjuncture penalty only if the penalty is reclusion perpetua to death. Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of prision correccional is consequently indicated but, again, another preliminary and cognate issue has first to be resolved. 9. ID.; ID.; ID.; RULE FOR GRADUATING PENALTIES; APPLICATION IN SPECIAL LAWS, WHEN ALLOWED; RATIONALE; CASE AT BAR. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it consists of three periods as provided in the text of and illustrated in the table provided by Article 76 of the Code. The question is whether or not in determining the penalty to be imposed, which is here to be taken from the penalty of prision correccional, the presence or absence of mitigating, aggravating or other circumstances modifying criminal liability should be taken into account. The Court is not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases, however, reveals that the reason therefor was because the special laws involved provided their own specific penalties for the offenses punished thereunder, and which penalties were not taken from or with reference to those in the Revised Penal Code. Since the penalties then provided by the special laws concerned did not provide for the minimum, medium or maximum periods, it would consequently be impossible to consider the aforestated modifying circumstances whose main function is to determine the period of the penalty in accordance with the rules in Article 64 of the Code. This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of penalties by degrees could not be given supplementary application to special laws, since the penalties in the latter were not components of or contemplated in the scale of penalties provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such supplementary application. The situation, however, is different where although the offense is defined in and ostensibly punished under special law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the system of penalties native to said Code. When, as in this case, the law involved speaks of prision correccional, in its technical sense under the Code, it would consequently be both illogical and absurd to posit otherwise. More on this later. For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or aggravating circumstance. 10. ID.; MODIFYING CIRCUMSTANCES; APPLICATION IN SPECIAL LAW, CONSTRUED; CASE AT BAR. While not squarely in issue in this

223 case, but because this aspect is involved in the discussion on the role of modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances should be considered and applied only if they affect the periods and the degrees of the penalties within rational limits. Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the stage of execution of the crime and the nature of the participation of the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the aforestated second paragraph of Section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been contemplated by the legislature. Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since the complex penalty in this case consists of three discrete penalties in their full extent, that is, prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two degrees, which must each likewise consist of three penalties, since only the penalties of fine and public censure remain in the scale. The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to have efficiency rather than fail. A perfect judicial solution cannot be forged from an imperfect law, which impasse should now be the concern of and is accordingly addressed to Congress. 11. ID.; INDETERMINATE SENTENCE LAW; WHEN APPLICABLE. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. The more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same" We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. There can be no sensible debate that

224 the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last examples. Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified under the rule of contemporanea expositio. Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, we have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in the effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." (Emphasis ours.) A divergent pedantic application would not only be out of context but also an admission of the hornbook maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in its construction of Act No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with death penalty or life imprisonment," we have held that what is considered is the penalty actually imposed and not the penalty imposable under the law, and that reclusion perpetua is likewise embraced therein although what the law states is "life imprisonment." What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the principles of literal interpretation, which have been rationalized by comparative decisions of this Court; of historical interpretation, as explicated by the antecedents of the law and related to contemporaneous legislation; and of structural interpretation, considering the interrelation of the penalties in the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense. Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such a way as to harmonize laws with laws, which is the best mode of interpretation. 12. ID.; ID.; CONSTRUED; APPLICATION IN CASE AT BAR. The Indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally interpreted in favor of the accused. The "minimum" sentence is merely a period at which, and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve the balance of his sentence outside of his confinement. It does not constitute the totality of the penalty since thereafter he still has to continue serving the rest of his sentence under set conditions. That minimum is only the period when the convict's eligibility for parole may be considered. In fact, his release on parole may readily be denied if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds, even if he has served the minimum sentence. It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision correccional

225 which is the maximum range we have fixed through the application of Articles 61 and 71 of the Revised Penal Code. For, with fealty to the law, the court may set the minimum sentence at 6 months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference, which could thereby even involve only one day, is hardly worth the creation of an overrated tempest in the judicial teapot. DAVIDE, JR., J., concurring and dissenting: 1. CRIMINAL LAW; INDETERMINATE SENTENCE LAW; CONSTRUED; CASE AT BAR. The first view is based on the proposition that since R.A. No. 7659 unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence also their technical signification and effects, then what should govern is the first part of Section 1 of the Indeterminate Sentence Law which directs that: "in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." Elsewise stated, by the adoption of the penalties provided for in the Revised Penal Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as amended, the latter offenses would now be considered as punished under the Revised Penal code for purposes of the Indeterminate Sentence Law. Section 1 of the Indeterminate Sentence Law (Act No. 4103, as amended by Act No. 4225 and R.A. No. 4203) also provides that: "if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum prescribed by the same." (Emphasis supplied). There are, therefore, two categories of offenses which should be taken into account in the application of the Indeterminate Sentence Law: (1) offenses punished by the Revised Penal Code, and (2) offenses punished by other laws (or special laws). The offenses punished by the Revised Penal Code are those defined and penalized in Book II thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify further, a crime is deemed punished under the Revised Penal Code if it is defined by it, and none other, as a crime and is punished by a penalty which is included in the classification of Penalties in Chapter II, Title III of Book I thereof. On the other hand, an offense is considered punished under any other law (or special law) if it is not defined and penalized by the Revised Penal Code but by such other law. It is thus clear that an offense is punished by the Revised Penal Code if both its definition and the penalty therefor are found in the said Code, and it is deemed punished by a special law if its definition and the penalty therefor are found in the special law. That the latter imports or borrows from the Revised Penal Code its nomenclature of penalties does not make an offense in the special law punished by or punishable under the Revised Penal Code. The reason is quite simple. It is still the special law that defines the offense and imposes a penalty therefor, although it adopts the Code's nomenclature of penalties. In short, the mere use by a special law of a penalty found in the Revised Penal Code can by no means make an offense thereunder an offense "punished or punishable" by the Revised Penal Code. 2. ID.; DANGEROUS DRUGS ACT; IMPOSABLE PENALTY; CASE AT BAR. The majority opinion holds the view that while the penalty provided for the Section 20 of the Dangerous Drugs Act is a complex one composed of three distinct penalties, viz., prision correccional, prision mayor, and reclusion temporal, and that pursuant to Article 77 of the Revised Penal Code, each should form a period, with the lightest of them being the minimum, the next as the medium, and the most severe as the maximum, yet, considering that under the

226 said second paragraph of Section 20 the penalty depends on the quantity of the drug subject of the criminal transaction, then by way of exception to Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as amended, each of the aforesaid component penalties shall be considered as a principal penalty depending on the quantity of the drug involved. Thereafter, applying the modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper period of the component penalty shall then be fixed. To illustrate, if by the quantity of the drugs involved (e.g., marijuana below 250 grams) the proper principal penalty should be prision correccional, but there is one mitigating and no aggravating circumstance, then the penalty to be imposed should be prision correccional in its minimum period. Yet, the majority opinion puts a limit to such a rule. It declares: "The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of drug offenses." Simply put, this rule would allow the reduction from reclusion temporal if it is the penalty to be imposed on the basis of the quantity of the drugs involved by two degrees, or to prision correccional, if there are two or more mitigating circumstances and no aggravating circumstance is present (paragraph 5, Article 64, Revised Penal code) or if there is a privileged mitigating circumstance of, say, minority (Article 68, Revised Penal Code), or under circumstances covered by Article 69 of the Revised Penal Code. Yet, if the proper penalty to be imposed is prision mayor, regardless of the fact that a reduction by two degrees is proper, it should only be reduced by one degree because the rule does not allow a reduction beyond prision correccional. Finally, if the proper penalty to be imposed is prision correccional, no reduction at all would be allowed. I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within the same second paragraph involving the same range of penalty, we both allow and disallow the application of Article 64(5), Article 68, and Article 69 of the Revised Penal Code. The reason for the disallowance, viz., in order not to depreciate the seriousness of drug offenses, is unconvincing because Section 20 of the Dangerous Drug Act, as amended by R.A. No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing quantity as basis for the determination of the proper penalty and limiting fine only to cases punishable by reclusion perpetua to death. It is unfair because an accused who is found guilty of possessing MORE dangerous drugs say 500 to 749 grams of marijuana, in which case the penalty to be imposed would be reclusion temporal may only be sentenced to six (6) months and one (1) day of prision correccional minimum because of privileged mitigating circumstances. Yet, an accused who is found guilty of possession of only one (1) gram of marijuana in which case the penalty to be imposed is prision correccional would not be entitled to a reduction thereof even if he has the same number of privileged mitigating circumstances as the former has. Also, if the privileged mitigating circumstance happens to be the minority of the accused, then he is entitled to the reduction of the penalty as a matter of right pursuant to Article 68 of the Revised Penal Code, which reads: "ART. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraph next to the last of Article 80 of this Code, the following rules shall be observed: 1. Upon a person under fifteen but over nine years of age, who is not exempted from Liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always Lower by two degrees at Least than that prescribed by Law for the crime which he committed. 2. Upon a person over fifteen and under eighteen years of age the penalty next

227 Lower than that prescribed by law shall be imposed, but always in the proper period." I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the Revised Penal Code in one aspect and not to apply it in another.

[G.R. No. 81002. August 11, 1994.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO DOROJA y PACANSA, defendant-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; GUILT BEYOND REASONABLE DOUBT; ESTABLISHED IN CASE AT BAR. Even if we were to agree that the confiscated marijuana, having been obtained during a warrantless search, is inadmissible in evidence against Pedro (now deceased), the remaining evidence on record insofar as the accused appellant himself is concerned, however, is sufficient to warrant his conviction by the trial court. Ample evidence has been presented to independently establish the buy-bust operation which netted two (2) aluminum foils with pieces of rolling paper and dried marijuana leaves with a total weight of 2.5 grams. No proof has been adduced to put to doubt the credibility of the prosecution witnesses, all law enforcement officers, who have undertaken the buy-bust operation in the regular performance of their official duties. 2. ID.; ID.; CREDIBILITY; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY UPHELD ON APPEAL. The Court has held that the matter of credibility is the province of the trial court to determine, the latter being in the best position to observe the demeanor of witnesses at the time their declarations before it are made. 3. ID.; ID.; ID.; DENIALS; CANNOT OVERCOME POSITIVE EVIDENCE. The bare denial by appellant, a most common defense raised in buy-bust operations, cannot overcome positive evidence to the contrary. Like defenses have almost invariably been similarly turned down in previous cases. 4. CRIMINAL LAW; DANGEROUS DRUGS ACT; SALE OF PROHIBITED DRUG; DELIVERY OF MARIJUANA, ESSENCE OF THE OFFENSE; NON-PRESENTATION OF MARKED MONEY DOES NOT MILITATE AGAINST THE PROSECUTION'S CASE. Under Rep. Act No. 6425, the essence of the offense is the act of delivery. We have since held that what really counts is that the poseur-buyer receives the prohibited drug from the accused. The fact that the money used in the buy-bust operation is not accounted for or presented in court does not militate against the prosecution's case. 5. ID.; EXTORTION; EXTORTION CLAIM BY LAW ENFORCERS, NOT AN EXCUSE IN PROSECUTION OF DRUG CASES. Appellant's claim of alleged extortion by the law enforcers is, too, a standard excuse in the prosecution of drug cases. Appellant's failure to offer independent corroborating evidence suggests that his defense of extortion is either a fabrication or an afterthought. We have also since observed that if, indeed, an extortion attempt is made, it should behoove, the victim to come forward with the proper charges against the culprits. 6. ID.; DANGEROUS DRUGS ACT; ILLEGAL SALE OF PROHIBITED DRUG (MARIJUANA); PENALTY. In view of the recent enactment (on

228 December 1993) of Republic Act ("R.A.") No. 7659, it would be well to delve at least briefly into the proper imposable penalty. In people vs. Martin Simon (G.R. No. 93028, 29 July 1994), this Court ruled (a) that the amendatory law, being more lenient and favorable to the accused than the original provisions of the Dangerous Drugs Act, should be accorded retroactive application, and (b) that pertinent provisions of the Revised Penal Code, in consonance with Article 10 thereof, as well as the Indeterminate Sentence Law, may now be considered suppletory to the Dangerous Drugs Act. The quantity of dried marijuana leaves, subject of sale by accused-appellant, has been found to have a total weight of 2.5 grams; there being neither mitigating nor aggravating circumstance, the applicable penalty would be prision correccional in its medium period. Applying the Indeterminate Sentence Law, still in conformity with the Martin Simon case, appellant Alberto Doroja y Pacansa may be sentenced to an imprisonment term ranging from a minimum of six (6) months of arresto mayor to a maximum of two (2) years and four (4) months of prision correccional in its medium period. Moreover, Section 17 of Republic Act No. 7659 does not prescribe any fine in cases involving a quantity of less than 750 grams of indian hemp or marijuana; accordingly, the fine of P30,000.00 imposed by trial court must now be deleted. The penalty properly imposable on appellant Alberto Doroja y Pacansa is REDUCED to an indeterminate period ranging from six (6) months of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as maximum. The fine imposed on accused-appellant by the trial court is deleted. Costs against appellant.

[G.R. No. 105842. November 24, 1994.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELIPE BAHUYAN, accused-appellant. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; JUDICIAL NOTICE; DELAYED REPORT OF COMMISSION OF RAPE IS COMMON, ESPECIALLY WHERE VICTIM IS A YOUNG GIRL; CASE AT BAR. While a complainant's act in immediately reporting the commission of rape has been considered by the Court as a factor strengthening her credibility, delay or vacillation in criminal accusations does not necessarily impair the complainant's credibility if such delay is satisfactorily explained. In this case, complainant explained that accusedappellant threatened to kill her if she told anybody of what transpired that day. Her mother, when cross-examined, likewise explained that her daughter chose to "keep her mouth shut" for fear for her life. In People v. Errojo, the court took judicial cognizance of the fact that many victims of rape never complain or file criminal charges against the rapists. They prefer to bear the ignominy and pain rather than reveal their shame to the world and risk the rapists' making good their threats to kill or hurt them. In addition, complainant was, at the time of the sexual assault, barely twelve years old. Indeed, one cannot expect her to act like an adult or a mature and experienced woman who would have the courage and intelligence to disregard a threat to her life and complain immediately that she had been sexually assaulted. It is not uncommon for young girls to conceal for sometime the assault on their virtue because of the rapists' threats on their lives. Compounded further by the shame inherent in the violation of her person, complainant opted to suffer in silence. When she was finally prevailed upon by her mother to admit her guarded secret and eventually file a case, the lapse of time cannot be said to affect her credibility. 2. ID.; ID.; CREDIBILITY OF TESTIMONY; CONSUMMATION OF RAPE WITH ONLY ONE HAND POSSIBLE WHILE THE OTHER CLASPS A

229 KNIFE; CASE AT BAR. It is certainly not impossible for a man with lewd designs to consummate the crime of rape with one hand while holding a knife with the other hand. In People v. Reyes, accused-appellant therein who also had a "hard time" in effecting sexual coitus, "took hold of his penis and helped it insert inside her vagina, as she was then a virgin" while he was covering complainant's mouth and threatening to kill her with a knife. 3. ID.; ID.; ID.; MINOR INCONSISTENCIES ARE EXPECTED WHEN RECOUNTING A HUMILIATING EXPERIENCE; CASE AT BAR. Where the accused points out that in the complaint, the complainant stated that she took off her panty while during her direct examination, she said that it was the accused who removed her panty, the Supreme Court held that the inconsistencies and minor lapses in her testimony are but to be expected when a person is recounting details of a humiliating experience too painful to recall. Moreover, affidavits taken ex parte are generally considered to be inferior to testimony given in open court. Therefore, discrepancies between statements of the affiant in his affidavit and those made by him on the witness stand do not necessarily discredit him. 4. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF RAPE; VICTIM'S AGE IS IMMATERIAL IF INFORMATION IS FOR RAPE COMMITTED WITH THE USE OF FORCE OR INTIMIDATION; CASE AT BAR. The information categorically charged rape committed with the use of force or intimidation under par. 1 of Article 335 of the Revised Penal Code and also with the use of a deadly weapon, namely, a knife. During the trial, the prosecution proved not only the use of force or intimidation and of a deadly weapon, but also the fact that the rape was committed the day before complainant turned twelve years old. The lower court convicted accused-appellant of rape committed under par. 1 using force or intimidation, and not under par. 3 statutory rape. Considering the facts of the case, the prosecution should have filed an information for statutory rape because of the materiality of complainant's age. When it failed to do so and instead filed an information for rape with the use of force or intimidation, complainant's age became inconsequential. Accusedappellant, therefore, has no basis in saying that the prosecution's burden of proof was relieved when it "conveniently" chose the date of the commission of the rape the day before complainant's twelfth birthday because, first, the prosecution had, in fact, proven force or intimidation, and second, the age of complainant is immaterial if the information is for violation of Art. 335, par. 1. 5. ID.; EVIDENCE; CREDIBILITY OF WITNESSES; YOUNG GIRL NOT LIKELY TO OFFER SEXUAL FAVORS FOR MEAGER HELP EXTENDED BY ACCUSED; CASE AT BAR. The Court finds the complainant's testimony credible and that of the accused-appellant, highly preposterous. Accused-appellant testified that complainant willingly dispensed sexual favors in exchange for some help he extended in money or in kind. Complainant does not deny that in several instances, accused-appellant gave her "baon" as he treated her as a granddaughter. In fact, she went to accused-appellant's house precisely to get the "pandesal" which the latter offered. It strains one's credulity to rely on accused-appellant's assertion that complainant offered her body in exchange for a measly amount of money and some bread. The so-called "payment" outweighs what she has received. Although accused-appellant owns the trees where complainant's mother used to get the fruits she sells, the former testified that the latter used to pay him for the same and does not owe him a single centavo. Accused-appellant is not justified in exploiting complainant simply because he can extend some assistance to her family who, though not so well-circumstanced, is not completely destitute as the mother has a means of livelihood.

230 6. ID.; ID.; ID.; TRIAL COURT'S FINDINGS THEREON ARE GENERALLY VIEWED AS CORRECT ON APPEAL. The Court, time and again, has adhered to the rule that, in matters of credibility, the trial court's findings are generally viewed as correct and entitled to the highest respect, it being more competent to conclude so, having seen closely the way the witnesses testified, their deportment, and the peculiar manner in which they gave their testimonies and other evidences in court. 7. ID.; ID.; ID.; SEXUAL INTERCOURSE WITH COMPLAINANT POSSIBLE DESPITE ADVANCED AGE OF ACCUSED; CASE AT BAR. Accused-appellant wanted to impress this Court that no sexual intercourse could have occurred because of his age since he claims to be 81 years old at the time of the rape. Considering that he strongly relies on his age to prove that he could not have committed the charge imputed to him, it is puzzling why no proof of his actual age was submitted by him. The lower court observed that, at the time of trial, "his physical appearance would indicate that he is beyond 70 years old." Assuming arguendo that this is the truth, his advanced age does not mean that sexual intercourse is no longer possible, as age is not a criterion taken alone in determining sexual interest and capability of middle-aged and older people. . . . . In the instant case, complainant herein categorically testified that accused did not succeed at first in his attempt at having sexual intercourse with her but later succeeded with "the help of his hand." It is well to remember the Court's pronouncement in People v. Palma, (G.R. No. 69152, September 23, 1986, 144 SCRA 236) that "impotency as a defense in rape cases must be proven with certainty to overcome the presumption in favor of potency." 8. ID.; ID.; FLIGHT IS AN INDICATION OF GUILT; CASE AT BAR. Accused-appellant's flight is another indication of his guilt. We do not accept his contention that complainant's cousin threatened him with bodily harm as no independent evidence was offered to support the same. Furthermore, it was proved that he had transferred to three different places before he was finally arrested. Moving from place to place would be unnecessary if his sole purpose were only to escape the threat on his life in the absence of evidence that he was being pursued. It was obvious that he was evading service of the warrant of arrest. "Flight evidences guilt and a guilty conscience; it strongly indicates a guilty mind or betrays the existence of a guilty conscience. 9. CRIMINAL LAW; RAPE BY AN OFFENDER OVER SEVENTY YEARS OLD; PROPER PENALTY THEREFOR IN CASE AT BAR. While the age of an offender over seventy years is a generic mitigating circumstance, the same will not affect the sentence imposed on accused-appellant, not only because his actual age was not proved, but also, even if the same is true, when the law prescribes a penalty composed of two indivisible penalties and the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. However, the phrase "after applying the Indeterminate Sentence Law, as amended" in the dispositive portion is unnecessary, the same not being applicable to persons convicted of offenses punishable with reclusion perpetua which is an indivisible penalty.

[G.R. No. 101507. December 29, 1994.] RAMON T. LOPEZ, petitioner, vs. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

231 SYLLABUS 1. REMEDIAL LAW; EVIDENCE; TESTIMONIES; AFFIDAVIT OF RETRACTION; DOES NOT NECESSARILY VITIATE THE ORIGINAL TESTIMONY IF CREDIBLE; REASONS THEREOF. Petitioner contends that the Court of Appeals erred in not giving credence to the recantation of Dizon, who executed an affidavit of desistance stating that he was not sure whether petitioner was one of the malefactors. We have previously held that mere retraction by a prosecution witness does not necessarily vitiate the original testimony if credible. The Court looks with disfavor upon retractions of testimonies previously given in court. The rationale for the rule is obvious: Affidavits of retraction can easily be secured from witnesses, usually through intimidation or for a monetary consideration. Recanted testimony is exceedingly unreliable. There is always the probability that it will later be repudiated. Where a witness testifies for the prosecution and retracts his testimony and subsequently testifies for the defense, the test of determining which testimony to believe is one of comparison coupled with the application of the general rules of evidence. A testimony solemnly given in court should not be set aside lightly and before this can be done, both the previous testimony and the subsequent one should be carefully juxtaposed and the circumstances under which each was scrutinized. In other words, all the expedients devised by man to determine the credibility of a witness should be utilized to ascertain which of the contradictory testimonies represents the truth. It would be risky to reject the testimony taken before the court of justice simply because the witness who has given it later may change his mind for one reason or another. Such rule will make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. 2. CRIMINAL LAW; ANTI-CARNAPPING ACT OF 1972; PENALTY WHEN COMMITTED BY MEANS OF VIOLENCE AGAINST OR INTIMIDATION OF PERSONS; APPLICATION OF INDETERMINATE SENTENCE LAW. The "carnapping" in this case was committed by means of violence against or intimidation of persons. The penalty prescribed under Section 14 of R.A. No. 6539 is "imprisonment for not less than seventeen years and four months and not more than thirty years." Under Section 1 of the Indeterminate Sentence Law, if an offense is punished by a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by the said law and the minimum shall not be less than the minimum term prescribed by the same. In fixing the maximum penalty, the trial court must have taken into consideration the fact that the stolen car was recovered the same day.

[G.R. No. 117568. January 4, 1995.] ROLANDO ANGELES y BOMBITA, petitioner, vs. DIRECTOR OF NEW BILIBID PRISON, respondent. SYLLABUS 1. CRIMINAL LAW; DANGEROUS DRUGS ACT; PENALTIES; AMENDMENT REDUCING THE SAME UNDER RA 7659; RETROACTIVE APPLICATION RULED; HOWEVER, PETITION FOR HABEAS CORPUS IN CASE AT BAR, PREMATURE. In People v. Angeles, (209 SCRA 799) this Court affirmed the trial court's decision convicting accused of the offense sale of "shabu," punishable under the Dangerous Drugs Act of 1972 and sentencing him to life imprisonment and to pay a fine of P20,000.00. Accused has now lodged with us this petition for habeas corpus, invoking (a) Republic Act No. 7659, which has reduced the penalties prescribed under the original provisions of the

232 Dangerous Drugs Act, and (b) the recent ruling of this Court in People vs. Martin Simon y Sunga, (G.R. No. 93028, 29 July 1994) which has confirmed the retroactive application of the above-numbered amendatory law. Petitioner was convicted of selling and delivering 0.13 grams of shabu. Conformably with the second paragraph of Section 20 of Republic Act No. 6425, as amended by Section 17 of Republic Act No. 7659 and as construed and applied in People v. Simon, the newly prescribed penalty for his offense would now only be prision correccional. Applying the Indeterminate Sentence Law, the range of indeterminate penalty on petitioner, modified accordingly, should thereby be from six (6) months of arresto mayor as minimum to six (6) years of prision correccional as maximum. The foregoing notwithstanding, Angeles' petition for habeas corpus cannot be granted. Petitioner, it appears, has only served the minimum of his sentence; however, he may, if qualified, be released on parole pursuant to Section 5 of the Indeterminate Sentence Law. 2. ID.; ID.; ID.; ID.; ID.; PETITION FOR HABEAS CORPUS AVAILABLE FOR THOSE CONVICTED WHO HAVE SERVED THE MAXIMUM OF APPLICABLE PENALTY UNDER RA 7659. The Court expresses its concern over the plight of persons convicted for drug-related offenses prior to the enactment and effectivity of Republic Act No. 7659 who, like herein petitioner, could be entitled to parole for having served their minimum sentences, or who, indeed, may be due for release from confinement after having served their maximum sentences conformably with the applicable penalties newly prescribed by Republic Act No. 7659 and our decision, construing this law, in the Simon case. Aware of the need to have this matter attended to with great dispatch, the Court sees it fit to take the opportunity, by way of extraordinary measures, to pronounce thusly: All courts of competent jurisdiction may entertain petitions for habeas corpus to consider the release of prisoners convicted for violation of the Dangerous Drugs Act who have served the maximum of the applicable penalties newly prescribed by Republic Act No. 7659. In this regard, the formalities required for petitions for habeas corpus shall be construed liberally, and such petitions, although deficient in form (e.g. in letter-petition forms), may be entertained so long as they are sufficient in substance. In the negative, the courts to which the petitions are filed may refer the matter to the Commission on Human Rights or to the Public Attorney's Office for possible assistance to the prisoners concerned.

[G.R. No. 101338. March 20, 1995.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISALITO TABARNO y AGENTE AND LUIS GOCOTANO, accused-appellants. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; JUDGE'S EXERCISE OF CLARIFICATORY QUESTIONS, NOT AN INDICATION OF BIAS AND PREJUDICE. Appellant's allegation that the trial judge was biased and prejudiced against him is not well taken. It is a judge's prerogative and duty to ask clarificatory questions to ferret the truth when he believes the witness is lying. As correctly observed by the Solicitor General in his brief for the People, "there was no showing that the judge had an interest, personal or otherwise, in the prosecution of the case at bar. He is therefore presumed to have acted regularly and in the manner to preserve the ideal of 'the cold neutrality of an impartial judge' implicit in the guarantee of due process (Mateo, Jr. v. Villaluz, 50 SCRA 18)." That the trial judge believed the prosecution's evidence more than the defense, does not indicate that he was

233 biased. He simply found the prosecution witnesses to be more credible than the accused. 2. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FRAME-UP; NOT ESTABLISHED IN CASE AT BAR. Indeed, the theory of the accused that they were framed, is not credible. Why would the policemen frame them? As pointed out by the trial judge, the accused are poor and unemployed. Gocotano is only a tricycle driver. Tabarno is a laborer in a hollow blocks factory. What could the police officers hope to extort from them? 3. ID.; ID.; ID.; ALIBI; UNAVAILING WHERE ACCUSED WAS POSITIVELY IDENTIFIED. Gocotano's alibi that he was in barangay Tangke, Talisay, Cebu during the NARCOM operation in Nivel in the evening of January 3, 1990, cannot prevail against his positive identification by the NARCOM agents. As the trial court observed, "it was not physically impossible for him to escape to Tangke, Talisay from Nivel that very evening and right after he eluded the lawmen's grasp at the crime scene. Nivel-to-Tangke-and-back trips by him were routine to Gocotano [appellant]; he frequently visited his mother in Nivel." 4. CRIMINAL LAW; DANGEROUS DRUGS ACT, AS AMENDED; PENALTIES. In view of the recent enactment (on 13 December 1993) of Republic Act (R.A.) No. 7659, it would be well to delve at least briefly into the proper imposable penalty. The Dangerous Drugs Act of 1972, as now amended by Section 17 of Republic Act No. 7659, provides: Sec. 17, Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, is hereby amended to read as follows: Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or instrument of the Crime. - The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: 1. 40 grams or more of opium; 2. 40 grams or more of morphine; 3. 200 grams or more of shabu or methylamphetamine hyrochloride; 4. 40 grams or more of heroine; 5. 750 grams or more of indian hemp or marijuana; 6. 50 grams or more of marijuana resin or marijuana resin oil; 7. 40 grams or more of cocaine or cocaine hydrochloride; or; 8. In the case of other dangerous drugs, the quantity of which is far beyond therapeutic requirements, as determined and promulgated by the Dangerous Drugs Board, after public consultation/hearings conducted for the purpose. Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. 5. ID.; REPUBLIC ACT NO. 7659; SECTION 17 THEREOF, GIVEN RETROACTIVE APPLICATION FOR BEING FAVORABLE TO THE ACCUSED. In People v. Martin Simon this Court ruled (a) that the amendatory law, Section 17 of Republic Act No. 7659, being more lenient and favorable to the accused than the original provisions of the Dangerous Drugs Act, should be accorded retroactive application. 6. ID.; PERTINENT PROVISIONS OF THE REVISED PENAL CODE AND INDETERMINATE SENTENCE LAW, SUPPLETORY TO THE DANGEROUS DRUGS ACT. Pertinent provisions of the Revised Penal Code, in consonance with Article 10 thereof, as well as the Indeterminate Sentence Law, may now be considered suppletory to the Dangerous Drugs Act. (People v. Martin Simon) 7. ID.; DANGEROUS DRUGS ACT; SALE OF 6 STICKS OF MARIJUANA CIGARETTES; PENALTY. With the foregoing developments, and it appearing that the appellant sold only six (6) sticks of marijuana cigarettes,

234 the second paragraph of Section 20 of R.A. No. 6425, as further amended by Section 17 of R.A. No. 7659, is applicable and considering such quantity, the proper imposable penalty should be prision correccional. Applying the Indeterminate Sentence Law, the appellant may then be sentenced to suffer an indeterminate penalty ranging from six (6) months of arresto mayor as minimum to two (2) years and four (4) months of prision correccional as maximum. 8. REMEDIAL LAW; CRIMINAL PROCEDURE; CONVICTION; RELEASE ORDERED WHERE ACCUSED- APPELLANTS' DETENTION EXCEED THE PERIOD OF MAXIMUM SENTENCE. It appearing that accused-appellant Luis Gocotano has been detained since May 26, 1990, already beyond the period of his maximum sentence, his immediate release from custody is ordered unless he is lawfully held for some other cause.

[G.R. No. 115430. November 23, 1995.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELIZABETH GANGUSO Y DECENA, accused-appellant. DECISION The accused-appellant appeals from the joint decision 1 of Branch 114 of the Regional Trial Court (RTC) of Pasay City in Criminal Cases Nos. 92-1932 band 92-1933 convicting her of the violation of Section 15, Article III of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and of illegal possession of firearms. This decision was rendered after a motion for a new trial on the ground of newly discovered evidence 2 was granted. 3 The earlier judgment of conviction was set aside 4 The accusatory portions of the informations under which the appellant was tried and convicted read as follows: Criminal Case No. 92-1932 That on or about the 26th day of November, 1992 in Pasay City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, Elizabeth Ganguso y Decena, without authority of law did then and there wilfully, unlawfully and feloniously sell and deliver to another Methamphetamine Hydrochloride (shabu), a regulated drug. Contrary to law 5 Criminal Case No. 92-1933 That on or about the 26th day of November, 1992 in Pasay City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, Elizabeth Ganguso y Decena with intent to use, did then and there, wilfully, unlawfully and feloniously have in her possession, custody and control a .38 cal (Paltik)revolver, without the necessary license to possess the same. Contrary to law. 6 The evidence for the prosecution is summarized by the trial court as follows: That at about 7:30 in the evening of November 26, 1992, Major Juvenile Sulapas, Officer-in-charge, Dangerous Drugs Enforcement Section, Pasay City Police Station, received confidential report from an informant about rampant trafficking of drugs by a certain "Beth Tomboy", who lives at house No. 2445, Caledonia Street, Pasay City; that a buy-bust operation was planned by subject officer and a briefing conducted wherein PO3 Dennis Vermug was as poseur-buyer, backed-up

235 by SPO1 Lumapat, SPO1 Gabutin, PO3s Mendoza and Garcia with SPO3 Fucanan as team leader; Mayor Sulapas provided PO3 Vermug with a P500.00 bill, the serial number of which was entered in the police blotter. Proceeding to the target area aboard two (2) tricycles at about 8:10 P.M., "Beth Tomboy" was pointed at by informant to PO3 Vermug, who lost no time in offering to buy P500.00 worth of shabu, to the suspect while the rest of the team members were observing from a distance; that "Beth Tomboy", after accepting the money, went into an interior alley to get the stuff from a man to whom she also handed the money; that as soon as she returned, she handed an aluminum packet (Exh. "B-1a") to PO3 Vermug who, upon executing a prearranged signal to his companions arrested the suspect. When frisked subsequent to the arrest by SPO2 Pudencio Lumapat, the suspect yielded a .38 caliber Paltik revolver; that PO3 Vermug ran after the man in the alley to recover the buy-bust money but failed to catch him. The suspect, who turned out to be Elizabeth Ganguso y Decena, a tomboy, was brought to Heardquarters and accordingly charged of drug pushing and illegal possession of firearm. The testimony of PO3 Dennis Vermug was corroborated in material points by SPO2 Prudencio Lumapat and SPO3 Dalmacio Fucanan. The prosecution marked and offered following documentary exhibits the Court admitted in evidence: For Criminal Case No. 92-1932: Exhibits "A", letter request for laboratory examination; Exhibit "B", white letter envelope containing Exhibit "A-1", transparent plastic bag and Exhibit "B-1-a", aluminum foil containing shabu; Exhibit "C", certification and DDB Report No. DD 92-1439, which found the specimen positive for Methamphetamine Hydrochloride; and, Exhibit "E", affidavit of arrest (both for Crim. Cases No. 92-1932 and 92-1933). For Criminal Case No. 92-1933: Exhibit "A", FEO Certification that accused is not a licensed holder; Exhibit "B", .38 caliber bullets 7 On the other hand, the appellant testified that at around 8:00 p.m. of 26 November 1992, she was washing clothes by the side of her house at No. 2445 Celendonia Street corner Decena Street, Pasay City. At that time, there were two other persons in her house, namely, her cousin Elvira de Leon and her cousin's maid, Ligaya Rojas. Suddenly, seven police officers barged into her house and, her presence, searched the premises without a search warrant. They also searched her person The policemen found nothing illegal in the house nor did they find anything on her. She was made to board a tricycle and was brought to the police station. At the station, a police officer by the name of Carbonell asked her who was selling shabu in their place, but she could not give him any name as she did not know. She denied selling shabu to PO3 Vermug. She also denied that a .38 caliber revolver was recovered from her 8 At the new trial, the defense presented Elvira de Leon and Lilia Magallanes, who tried to show that no firearm was confisted from the appellant and that no buybust operation took place. Lilia claimed she saw the arrival of five policemen riding on two tricycles. The policemen entered the house of the appellant without talking to anyone at the door. According to Elvira, she heard the appellant and the policemen arguing inside the house, with the former asking the policemen whether they had a warrant and the latter answering that they needed none as they were just going to ask her a few questions. The trial court considered as credible the narration by the police witnesses of the events of the events which led to the arrest of the accused. It disregard the appellant's defense of alibi as well as the testimonies of her witnesses at the new trial which it found as "untruthful and contradictory to each other on material points." 9 It then convicted the accused of both charges and sentenced her as follows: (1) in criminal Case No. 92-1932 to suffer the penalty of life imprisonment and to pay a fine of P30,000.00, plus costs; and (2) in Criminal

236 Case No. 92-1933 to suffer an indeterminate penalty of ten years and one day of prision mayor, as minimum, to twelve years and one day, as maximum, and to pay a fine of P17,000.00, plus costs. In this appeal, the appellant urges us to acquit her because the trial court erred I IN FINDING THAT THE PROSECUTION HAS FULLY MET THE TEST OF MORAL CERTAINTY AS TO THE GUILT OF THE ACCUSED ON BOTH CHARGES OF VIOLATION OF SECTION 15, ARTICLE III OF REPUBLIC ACT 6425 AND PRESIDENTIAL DECREE NO. 1866; II IN ADMITTING AS EVIDENCED THE .38 CALIBER [REVOLVER] (EXHIBIT "B") AGAINST DESPITE THE ABSENCE OF A BUY-BUST OPERATION JUSTIFYING WARRANTLESS ARREST UNDER SECTION 5, RULE 113 OF THE RULES OF COURT. In the first assigned error, the appellant assails the testimonies of the prosecution witnesses as inconsistent and unconvencing. She points out that both SPO2 Lumapat and SPO3 Fucanan could not have seen the object of the transaction between her and PO3 Vermug, since they were watching from a distance. She further asserts that the absence of prior surveillance and the non-presentation of the marked money cast doubt on her guilt for the crime charged. In her second assigned error, the appellant maintains that since her warrantless arrest did not come under Section 5, Rule 113 of the Rules of Court, the same was unlawful; hence, the warrantless search and seizure of the firearm, assuming that she had it, was also unlawful. Elsewise stated, if an arrest without a warrant is unlawful at the moment it is made, nothing that happens or is discovered afterwards can make it lawful, for the fruit of a poisoned tree is necessarily tainted. 10 In its Brief, Appellee, through the Office of the Solicitor General, submits that the trial court committed no error in finding the appellant guilty beyond reasonable doubt of the crimes charged but asks for a modification of the penalties imposed. It recommends that in the light of the amendments introduced by R.A. No. 7659 to R.A. 6425, as amended, and of the decision of this Court in People vs. Simon, 11 the penalty to be imposed in Criminal Case No. 92-1932 should be an indeterminate sentence of two to four years of prision correctional. 12 It, however, asks this Court to review and clarify its ruling in Simon regarding the application of penalties and then submits that the adoption in R.A. No. 7659 of the penalties in the Revised Penal code does not make the offense under the Danger Drugs Act punishable under the Revised Penal Code, and the said Act as thus further amended by R.A No. 7659 remains a special law; hence, under the Indeterminate Sentence Law, "the imposable penalty should be that whose minimum term should not less than the minimum prescribed by the special law (the Dangerous Drugs Act), i. e., not lower than six (6) months and one (10 day of prision correctional." The Appellee also contends that the imposable penalty in Criminal Case No. 92-1933 should be "seventeen (17) years, four (4) months and one (1) day, as minimum, to twenty (20) years, both of reclusion temporal, respectively, pursuant to the first paragraph of Section 1 of P.D. 1866." 13 An accused has in his favor the presumption of innocence which the Bill of Rights guarantees. 14 Unless his guilt is shown beyond reasonable doubt, 15 he must acquitted. This reasonable doubt standard is demanded by the due process clause of the Constitution which protects the accused from conviction except upon proof

237 beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. 16 The burden of proof is on the prosecution, and unless it discharges that burden the accused need not even offer evidence in his behalf, and he would be entitled to an acquittal. 17 Proof beyond reasonable doubt does not, of course, mean such degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. 18 The conscience must be satisfied that the accused is responsible for the offense charged. 19 The evidence for the prosecution has established that when the poseur-buyer, PO3 Vermug, was already in front of the appellant, the former asked her if he could buy P500.00 worth of "S" (shabu). After she received the money, she went toward the interior where she met a man to whom she handed the money. The man then gave her something. She returned to where Vermug was and gave to him that something she received from the man. Thereupon, Vermug placed it in his pocket and arrested the appellant. Thus: Q So when you approached her, wearing a white T-shirt, what happened next? A I handed P500.00 to Beth. Q You immediately handed to her P500.00 without telling her anything? A First, I talked to her and asked her if I could buy P500.00 worth of "S". Q How did you talk to her? A I approached her and told her that I was going to buy P500.00 worth of "S" and handed to her the P500.00. Q What are the exact words that you told her? A "Beth PABILI NG WORTH P500.00 NG "S". Q What did Beth Tomboy say if any? A She got the money. Q Without telling you anything? A By saying: "SANDALI LANG". xxx xxx xxx Q After Beth received the P500.00, what did she do, if any ? A She went inside an interior and talked with a man, a tall and well built man. Q How far was this man from your position? A More or less five (5) meters away, sir. Q After Beth approached this man, what happened next? A. That man gave something to Beth. Q If you know what was that something handed down by the man to Beth ? A The shabu we were buying. Q After the man handed Beth something as you said the shabu, what did Beth do, if any? A She returned to me and delivered to me the stuff. Q Did you receive the stuff? A Yes, sir. Q What did you do next? A I held my head with my left hand, as our pre-arranged signal. Q Where was Beth that time? A Just in front of me. Q What happened next? A Immediately after delivering to me the stuff, I held my head and at the same time introduced myself as police officer and held Beth, after that, my companions arrived and took hold of Beth. On my part, I ran after the man whom Beth Talked to earlier. 20

238 We cannot, even by any stretch of the imagination, say that the appellant was merely used by PO3 Vermug to buy shabu. In the first place, she was the target of the buy-bust operation, there having been an information received at the police station that she was engaged in selling drugs. Second, she did not know Vermug; hence, she could not be expected to oblige him by buying a dangerous drug for him. Third, it was to her that Vermug's offer to buy was made. The version offered by the prosecution is susceptible of two interpretations though. One of which is that the appellant was engaged in the buy-and-sell of dangerous drugs. When Vermug offered to buy P500.00 worth of "S" and the appellant got the money without asking what "S" meant, it was apparent that she already understood what "S" stood for. There was, therefore, a meeting of minds upon a definite object and upon the price. The appellant's acceptance of the payment was an indication that she had given her consent to the contract of sale. It was a clear evidence that the contract between her and Vermug was perfected and was even partially fulfilled and executed. 21 The appellant did not, however, have in her possession or disposition the object of the sale. Article 1459 of the Civil Code provides in part that the vendor must have a right to transfer the ownership of the subject sold at the time it is delivered. This means that the seller must be the owner of the thing sold at the time of delivery. But, he need not be the owner at the time of the perfection of the contract. 22 There is no doubt that the appellant had already a right to dispose of the prohibited stuff at the time she delivered it to Vermug, for ownership thereof was acquired by her from the moment it was delivered to her by the man from the interior after her payment of the price therefor. 23 Two transactions were then consummated viz., that between the appellant and Vermug, with the appellant as the seller, and that between the appellant and the man from the interior, with the former as the buyer. The other interpretation is that the appellant was merely acting as an agent of the supplier or seller of dangerous drugs. In their way, she is criminally liable. In the first interpretation, she is culpable for selling dangerous drugs, and in the second, for delivering such drugs. Section 15 of R.A. No. 7425, as further amended by R.A. No. 7659, provides: SEC. 15. Sale, Administration, Dispensation, Delivery, Transportation, and Distribution of Regulated Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who unless authorized by law, shall sell, dispense, deliver,. transport or distribute any regulated drug.(emphasis supplied) The fact that Vermug did not open the aluminum foil given by the appellant to him does not destroy the evidence for the prosecution. It must be noted that when the man in the interior handed that "something" to the appellant, Vermug believed that the same was shabu, thus: Q A Q A After Beth approached this man, what happened next? That man gave something to Beth. If you know what was that something handed down by the man to Beth? The shabu we were buying. 24

It was understandable that he did not bother to open that "something," as he was apparently in a hurry to arrest the appellant and the man from whom the stuff was obtained. He kept the stuff in his pocket, and upon reaching their office, he turned it over to Antonio Conlu, who then marked it with his initials "AC." When the latter opened the foil, Vermug saw a crystalline substance which, upon

239 examination by the forensic Chemist, gave a positive result for Methamphetamine Hydrochloride, confirming therefore his belief that it was shabu. The fact that SPO2 Lumapat and SPO3 Fucanan were not able to see at close range the object of the transaction between the appellant and Vermug does not adversely affect the evidence for the prosecution. The testimonies regarding the buy-bust operation, being merely corroborative, are not indispensable for the conviction of the appellant. Neither are prior surveillance and the presentation in evidence of the marked money. It has been held that a prior surveillance is not a prerequisite for the validity of an entrapment operation 25 especially when the buy-bust team members were accompanied to the scene by their informant. 26 The absence of the marked money neither creates a hiatus in the evidence for the prosecution so long as the sale of the dangerous drugs is adequately proven 27 and the drug subject of the transaction is presented before the court. 28 There being proof beyond reasonable doubt that the appellant was caught in flagrante delicto in the act of selling shabu, her conviction must stand. The penalty imposed on her should, however, be modified in view of R.A. No. 7659. notably, the trial court's decision was rendered on 12 January 1994 and promulgated on 10 March 1994. R.A. No. 7659 took effect on 31 December 1993 yet. The trial judge must not have been aware of that law yet or was hesitant to apply it to this case. Being patently favorable to the appellant, that amendatory law should be applied retroactively to the instant case. It is now settled that where the quantity of methamphetamine hydrochloride (shabu) is less than 200 grams, the penalty is prision correctional to reclusion temporal depending upon the quantity. The shabu sold by and confiscated from the appellant weights 0.1954 grams only. Applying R.A. No. 7659, the Indeterminate Sentence Law, and the People vs. Simon 29 case, and there being neither aggravating nor mitigating circumstances, the proper penalty should be that within the range of arresto mayor in its medium period, as minimum, to prision correccional in its medium period, as maximum. The submission of the Appellee that the minimum term to be imposed on the appellant should not be less than the minimum prescribed in R.A. No. 6425, as further amended by R.A. No. 7659 must be rejected. This Court's ruling on this matter in the Simon case is clear. Thus: It is true that Section 1 of [the Indeterminate Sentence Law], after providing for indeterminate sentence for an offense under the Revised Penal Code. states that "if offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. . . .

240 We repeat, Republic Act No. 6425, as now amended by Republic Act. No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, wen have applied the provisions of the amended Section 20 of said law to arrive at prision correctional and Article 64 of the Code to impose the same in the medium period. Such offense, although provided for a special law, is now in effect punished by and under the Revised Penal Code. Correlatively, to determine the minimum, we must apply the first part of the aforesaid Section 1 which directs that "in imposing a prison sentence for an offense punished by the Revised Penal Code or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense." (Italics ours.) This Court, however, has serious doubts about the alleged confiscation of the firearm from the accused. SPO2 Lumapat declared in a cavalier fashion that he just happened to touch the accused's right waistline and felt something hard which turned out to be a rusty firearm with a string attached to its handle, and he remarked, "O may baril ka," the accused told him that the gun was not hers. Thus: Q After Dennis Vermug surrendered this person who looked like a man to you, what did you do? A After Dennis Vermug handed to me the person of the accused I happened to touch something hard at the waistline of the suspect sir. Q Which waistline did you touch? A Right waistline sir. Q After you were able to touched [sic] hard object on the right waistline of the suspect, what did you do next? A I did release it anymore and I took it and i found it to be a gun sir. Q What did you see [sic] if any to the suspect after you got the said gun from her right waistline? A I was only able to utter "O may baril ka." Q What was the reply of the suspect? A According to her the gun was not hers sir. Q Can you described to us the gun which you recovered? A It was something rusty and the handle has a string sir. Q What kind of gun is it? A .38 caliber sir. 30 Yet, team leader Fucanan testified on direct examination that it was only in their office that he actually saw the gun and learned that it was a .38 caliber. Thus: Q A Why do you know that it is a .38 caliber? We saw it in our office. 31

According to Lumapat, the gun is somewhat rusty with a string attached to the handle. Absent any evidence of any derogatory report against her as a possessor of an unlicensed firearm, this Court finds it incredulous for the appellant to keep in her waistline rusty firearm, the handle of which was merely tied or bound by a copper wire. Then too, she was not even investigated on the firearm and made to sign any paper wherein the acknowledged that a firearm was taken from her. Neither did Lumapat issue her a receipt for the firearm. She should therefore be acquitted, there being a reasonable doubt that she had in her possession an unlicensed firearm at the time she was arrested.

241 WHEREFORE, the instant appeal is partly GRANTED, and the challenged decision in Criminal Cases Nos. 92-1932 and 92-1933 of Branch 114 of the Regional Trial Court of Pasay City is hereby MODIFIED. As modified, accusedappellant ELIZABETH GANGUSO Y DECENA is hereby ACQUITTED in Criminal Case No. 92-1933 on ground of reasonable doubt. The penalty imposed on her in Criminal Case No. 92-1932 is hereby reduced to an indeterminate sentence of three (3) months of arresto mayor, as minimum, to three (3) years of prision correccional, as maximum. Costs de oficio. SO ORDERED.

[G.R. No. 123991. December 6, 1996.] FELIX LADINO, petitioner, vs. HON. ALFONSO S. GARCIA and PEOPLE OF THE PHILIPPINES, respondents. DECISION A little more circumspection could have avoided this appellate recourse, as well as the routinary referral to the Solicitor General since this is a criminal case on appeal, and rendered unnecessary this opinion reiterating settled and elementary rules of criminal law. The facts are not in dispute. Petitioner and one Restituto Amistad were charged with the special complex crime of robbery with homicide in Criminal Case No. TG-2450-95 filed in Branch 18 of the Regional Trial Court in Tagaytay City, presided by respondent judge. Both accused pleaded not guilty when arraigned. At the hearing of the case on February 5, 1996, both accused offered to plead guilty to the lesser offense of simple homicide. In open court, the widow of the deceased victim, as private complainant, and the assistant provincial prosecutor representing the People in the case, expressed their conformity thereto. That agreement was unqualifiedly approved by respondent judge. Pursuant to the plea of guilty to the crime of homicide, the trial court rendered an "Order" on February 19, 1996, reciting the aforestated antecedents, declaring both accused guilty beyond reasonable doubt of the crime of homicide, and sentencing each of them to a prison term of 14 years, 8 months and 1 day to 17 years, 4 months and 1 day of reclusion temporal, 1 and to severally pay the civil liability. Accused having questioned the penalty imposed on them in light of the provisions of the Indeterminate Sentence Law, 2 and the court below having refused to reconsider the same, the case is now before us via a petition for review on certiorari filed by one of the accused on the lone question of law as to whether or not the indeterminate sentence meted by the trial court is correct. We shall, therefore, go back to basics. Preliminary, it will be noted that the indeterminate sentence in question has a range of 14 years, 8 months and 1 day, as minimum, to 17 years 4 months and 1 day, as maximum. In fine, the minimum is within the range of reclusion temporal in its medium period, while the maximum is reclusion temporal in its maximum period. This latter part, by itself, is erroneous. As a simple matter of law, the penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal in its entire extent and, in the absence

242 of modifying circumstances, the penalty should be imposed in its medium period. 3 This has a duration of 14 years, 8 months and 1 day to 17 years and 4 months, and shall be the basis of "an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code." 4 The lower court. accordingly, overshot the permissible maximum of the penalty, by only one day to be sure but constitutive of error just the same. More importantly, it disregarded the further prescription that the minimum of the sentence "shall be within the range of the penalty next lower to that prescribed by the Code for the offense." 5 This would, therefore, be prision mayor in any of its periods as the court, in the exercise of sound discretion and the circumstances of the case, may consider commensurate and proper. Parenthetically, there is no claim that the accused are excepted from the coverage of the Indeterminate Sentence Law. It would appear, therefore, that the lower court may have been bothered or influenced by the fact that the crime originally charged was robbery with homicide with a decidedly higher penalty of reclusion perpetua to death, 6 whereas the accused had been allowed to plead guilty to homicide punishable by reclusion temporal, and yet they would further ask for a still lower minimum of prision mayor. Elsewise stated, the trial court must have also proceeded on the hypothesis that where a lesser penalty has been imposed for an offense lighter than that in the original indictment, because of the agreement among the accused, the prosecutor and the offended party for such reduced liability, the Indeterminate Sentence Law should not apply in toto. The position taken by the lower court is, therefore, perplexing in view of the fact that it did impose what purports to be an indeterminate sentence, albeit incorrect. Also, it overlooked the fact that it expressly found the accused "GUILTY beyond reasonable doubt of the crime of Homicide." Necessarily, it has to impose the penalty for that felony as prescribed in Article 249, without regard to what would have been the penalty for the original offense charged under Article 294(1), and to comply with the legal consequences flowing therefrom. The fact that the lesser offense, and its necessarily lower penalty, resulted from a plea bargaining agreement is of no moment as far as the penalty to be imposed is concerned. Plea bargaining is authorized by the present Rules and is in fact required to be considered by the trial court at the pre-trial conference. 7 The felony of homicide which must constitute the basis for the penalty to be imposed having been agreed upon among the requisite parties and approved by the trial court itself, that downgraded offense and its lower penalty shall control the adjudgment of and any further proceedings before the court a quo. From that undisputable and obvious premise, it follows that the aforecited provisions of Act No. 4103, as amended, shall necessarily apply. Also on that score, it should be kept in mind that to determine whether an indeterminate sentence and not a straight penalty is proper, what is considered is the penalty actually imposed by the trial court, after considering the attendant circumstances, and not the imposable penalty. 8 Corollarily, it would be an unduly strained postulate that a sentence arrived at by a court after a valid plea bargaining should constitute an exception to the Indeterminate Sentence Law in addition to those enumerated in Section 2 thereof. We note one other aspect of this case which understandably has not been mentioned by the parties and their legal representations in this appeal. The other accused, Restituto Amistad, who is identically circumstanced and was sentenced

243 to serve the same penalty which has been demonstrated to be mistakenly excessive, does not appear to have perfected an appeal from that judgment. The record does not show the reason therefor. Be that as it may, the present rule is that an appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter. 9 Our pronouncements here with respect to petitioner Felix Ladino, his co-accused, are definitely favorable and applicable to accused Restituto Amistad. He should not therefore be treated as the odd man out, but should also benefit from the more beneficial indeterminate sentence that we shall impose. In fact, under similar conditions and on the same ratiocination, the aforecited Rule has justified the extension of our judgment of acquittal to the co-accused who failed to appeal from the judgment of the trial court which we subsequently reversed. 10 ACCORDINGLY, the impugned disposition of respondent judge is MODIFIED and herein petitioner Felix Ladino and accused Restituto Amistad are hereby SENTENCED to each serve an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, but with the judgment of the court a quo being AFFIRMED in all other respects. SO ORDERED.

[A.M. NO. RTJ-96-1349. April 18, 1997.] SPOUSES JOSE and TRINIDAD BACAR, complainants, vs. JUDGE SALVADOR P. DE GUZMAN, JR., respondent. DECISION In this petition by way of complaint, dated 11 April 1994, petitioner-spouses Jose and Trinidad Bacar pray for the dismissal from the service of respondent Judge Salvador P. de Guzman, Jr., presiding judge of the Regional Trial Court of Makati, Branch 142, on the grounds of: 1) gross ignorance of the law, and; 2) rendering an unjust judgment in Criminal Cases Nos. 89-1360 and 89-2878 for homicide and attempted homicide respectively, both entitled "People of the Philippines v. Gerardo Fortaleza Marcial". The antecedent facts are as follows: On 30 March 1989, an information for homicide (for the death of one Maximo Bacar, son of herein petitioner-spouses) was filed by 2nd Assistant Fiscal Domingo A. Israel against Gerardo Fortaleza Marcial before the Regional Trial Court of Makati, Branch 142, docketed as Criminal Case No. 89-1360. On 7 June 1989, another information (this time for attempted homicide committed against one Edgar Mabuyo) was filed by the aforesaid Fiscal Israel against the same Gerardo Fortaleza Marcial before the same court, docketed as Criminal Case No. 89-2878. On 13 May 1992, after trial on the merits, a Joint Judgment in Criminal Cases Nos. 89-1360 and 89-2878 was rendered by respondent judge, finding the accused Gerardo Marcial guilty beyond reasonable doubt of the crimes charged. The dispositive part of the decision reads:

244 "WHEREFORE, in view of the foregoing, the Court finds the accused Gerardo Marcial guilty beyond reasonable doubt of the crime of Homicide in Criminal Case No. 89-1360 and of the offense of Slight Physical Injuries in Criminal Case No. 89-2878. No modifying circumstances having attended the commission of said crimes, the accused is hereby sentenced to an indeterminate penalty of from eight (8) years and one (1) day of prision mayor to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal with respect to Criminal Case No. 89-1360 and to suffer imprisonment of thirty (30) days of arresto menor as regards Criminal Case No. 89-2878. The accused is further ordered to indemnify the heirs of the victim Maximo Bacar in the amount of P50,000.00 as moral damages and to pay the amount of P33,572.00 as actual damages and costs of suit. SO ORDERED. Makati, Metro Manila, May 13, 1992." On 13 August 1992, the accused, Gerardo Marcial, filed a motion for reconsideration of the joint judgment, alleging among others, that the court erred in imposing the penalties without considering at least two (2) mitigating circumstances, namely: sufficient provocation or threat on the part of the offended party which immediately preceded the act, and; that the accused had no intention to commit so grave a wrong as that committed. On 28 October 1992, herein petitioners filed an opposition to said motion. However, on 13 November 1992, the lower court granted the motion for reconsideration filed by the accused. After reassessing the facts of the case on the basis of said motion, respondent judge took into account the mitigating circumstances of want of intent to commit so grave a wrong and sufficient provocation which immediately preceded the act and accordingly, reduced the penalty in Criminal Case No. 89-1360 to six (6) years of prision mayor, while retaining the penalty in Criminal Case No. 89-2878, i.e., imprisonment of thirty (30) days of arresto menor. The lower court justified its order thus: "It appearing upon a re-examination of the evidence on record that the encounter between the group of the accused Gerardo Marcial and that of the victims Maximo Bacar and Edgar Mabuyo precipitated a 'free for all fight', that in such a melee, confusion broke loose and was expected to ensue as a matter of course; that the participation in the melee of each of the members of the respective groups of the victims and the accused was unexpected and unpremeditated; that the victim Edgar Mabuyo admitted that prior to the incident, there was heckling which came from him directed to the group of the accused Gerardo Marcial and that it was he who started it out, that accused Gerardo Marcial confined himself to giving a single thrust with an icepick on the right arm of Edgar Mabuyo and at the back of Maximo Bacar from which it can be safely inferred that the accused had no intention to commit so grave a wrong, for otherwise, he would have persisted in attacking the victims to the point of finishing them off; the Court resolves to accord the accused Gerardo Marcial the benefit of the mitigating circumstances of want of intent to commit so grave a wrong and sufficient provocation which immediately preceded the act in accordance with Article 13, paragraphs 3 and 4 of the Revised Penal Code and hereby reconsiders the Decision dated May 13, 1992 in the foregoing respect." 1 On 14 December 1992 and 16 April 1993, respectively, the prosecution filed a motion for reconsideration and an addendum to said motion. On 25 May 1993, the accused filed his comment and/or opposition to the prosecution's motion for reconsideration. On 9 December 1993, respondent judge issued an order denying

245 the prosecution' s motion for reconsideration for lack of merit. On 4 January 1994, the prosecution filed another motion for reconsideration and clarification which respondent judge denied anew on 21 January 1994. On 11 April 1994, the spouses Jose and Trinidad Bacar, parents of the deceased victim Maximo Bacar in Criminal Case No. 89-1360, filed the present petition praying for the dismissal of respondent judge Salvador P. de Guzman, Jr., presiding judge of the RTC of Makati, Branch 142, for gross ignorance of the law and for rendering an unjust judgment in said consolidated cases. On the first issue, petitioners allege that respondent judge committed gross ignorance of the law when he accorded the accused the mitigating circumstances of want of intent to commit so grave a wrong and sufficient provocation which immediately preceded the act in accordance with Art. 13, pars. 3 and 4 of the Revised Penal Code because these cited provisions are not applicable in either or both criminal cases. They contend that lack of intent to commit so grave a wrong cannot apply in Criminal Case No. 89-2878 where the accused was found guilty of slight physical injuries because lack of intention to kill is not mitigating in crimes against persons, citing the case of People v. Dalacgac 2 where it was held that in crimes against persons who do not die as a result of the assault, the absence of the intent to kill reduces the felony to mere physical injuries, but it does not constitute a mitigating circumstance under Art. 13, par. 3. 3 Additionally, said mitigating circumstances cannot apply to Criminal Case No. 89-1360 (for Homicide) for when the accused stabbed the unarmed and defenseless Maximo Bacar at his back with an icepick, it is crystal clear, so petitioners contend, that the intention of the accused Gerardo Marcial at that particular moment when he executed or committed the stabbing was to kill and finish off Maximo Bacar and not to harm him only. 4 Petitioners cite the case of People v. Boyles, et al., 5 to wit: "Article 13, par. 3 of the Revised Penal Code addresses itself to the intention of the offender at the particular moment when he executes or commits the criminal act; not to his intention during the planning stage. Therefore, when, as in the case under review, the original plan was only to rob, but which plan, on account of the resistance offered by the victim, was compounded into the more serious crime of robbery with homicide, the plea of lack of intention to commit so grave a wrong cannot be rightly granted. The unforgettable fact remains that when they ganged up on their victim, they employed deadly weapons and inflicted on him, mortal wounds in his neck. At that precise moment, they did intend to kill their victim, and that was the moment to which Art. 13, par. 3 refers." 6 As for the mitigating circumstance of sufficient provocation, petitioners contend that this is not applicable to Criminal Case No. 89-1360 (for Homicide) for while Edgardo Mabuyo, the victim in Criminal Case No. 89-2878, admitted that prior to the incident, there was heckling which came from him directed at the group of the accused Gerardo Marcial and that he was the one who started the heckling, and that the heckling triggered the "free for all fight", there was however, no iota of evidence that the deceased Maximo Bacar made any provocation. It is further argued by petitioners that under said Article 13, par. 4, RPC, the provocation to be considered mitigating must originate from the offended party. Therefore, said mitigating circumstance cannot be appreciated in the case involving the deceased Maximo Bacar as it is undisputed that he himself never gave or caused any provocation. Petitioners contend that instead of according the accused Gerardo Marcial the aforesaid mitigating circumstances, respondent judge should have considered the

246 aggravating circumstances of abuse of superior strength under Art. 14, par. 15, of the Revised Penal Code and treachery under Art. 14, par. 16, of the same Code. 7 On rendering an unjust judgment, petitioners allege that in imposing a straight penalty of six (6) years imprisonment for homicide, after taking into consideration the aforesaid mitigating circumstances, respondent judge has rendered an unjust judgment in Criminal Case No. 89-1360. It is contended that under the graduation and application of penalties, the penalty that should be imposed can in no case be justified to only six (6) years "flat". 8 The present complaint was referred to respondent judge for comment by then Deputy Court Administrator Juanito A. Bernad in his First (1st) Indorsement dated 27 May 1994. In reply thereto, respondent judge filed a motion, dated 3 June 1994, requesting for an extension of twenty (20) days within which to file his comment for the reason that he needed to borrow the records of said Criminal Cases Nos. 89-1360 and 89-2878 from the Makati Regional Trial Court so that he may be able to file an intelligible comment. He also explained that per his recollection, when accused Marcial filed his motion for reconsideration of the joint judgment, respondent judge, to be sure that he would not commit an error, sought a second opinion from one Judge Nemesio Felix who allegedly opined that the said accused should have been given the benefit of homicide in a "tumultuous affray" with no intent to commit the crime, and of self-defense, and suggested a reduced straight penalty of anywhere from two (2) years to six (6) years. Respondent's request for extension was granted by then Deputy Court Administrator Juanito A. Bernad per his letter dated 20 June 1994. However, as his comment was not forthcoming, tracer letters, dated 8 November 1994 and 10 October 1995, were sent to respondent judge by the Office of the Court Administrator (OCA, for brevity), reiterating the directive for him to file his comment on the complaint against him. Meanwhile, complainants filed a letter with the OCA dated 20 October 1995 reiterating the charges against respondent judge and particularly assailing his order of 13 November 1992 imposing a straight penalty of six (6) years so as to enable the accused to avail of the benefits of probation and prayed that judgment be imposed by this Court on the accused to vindicate the death of their son. They also took exception to the statement of respondent judge in the assailed order that their motion for reconsideration dated 10 December 1992 was filed out of time. 9 Since respondent judge continually failed to file his comment, this Court issued a Resolution, dated 1 July 1996, requiring respondent judge to 1) show cause why he should not be disciplinarily dealt with or held in contempt for failure to comment on the complaint, and; 2) file the required comment on the complaint. In the same Resolution, the complainants were advised that their prayer to impose the correct penalty in the criminal charges cannot be granted since the present proceedings involve only the administrative liability, if any, of respondent judge. On 6 August 1996, respondent judge finally filed his comment. He explained therein why he took into consideration the aforesaid mitigating circumstances and contends that in doing so, he merely exercised his discretion and judgment. As to why he should not be disciplinary dealt with or held in contempt for failure to file comment, respondent judge set forth the following reasons: "1. In the belief that the complaint for ignorance of the law (for appreciating the two (2) mitigating circumstances) was unquestionably, obviously and completely baseless because they were acts of judicial discretion in the

247 appreciation of evidence, respondent did not give the matter the priority that it deserved. 2. The Bacar spouses assured respondent during a visit to him in the Pasay City RTC that they were going to withdraw their complaint. 3. Respondent had been under severe stress since the first week of November 1995 to the present when he discovered that Judge Salvador Abad Santos, executive judge of the Regional Trial Court of Makati, . . . initiated an administrative complaint against him . . ." 10 On 14 August 1996, respondent judge filed an urgent ex-parte motion for second (2nd) extension of time to file his explanation, and; on 28 August 1996, respondent finally filed his explanation on why he should not be disciplinarily dealt with or held in contempt of court for his failure to file a comment. After evaluating the foregoing facts, the Office of the Court Administrator made the following findings: 1. Respondent cannot be held liable for rendering an unjust judgment by considering in favor of the accused the two (2) mitigating circumstances. Under the Rules of Court, a judgment of conviction may, upon motion of the accused, be modified or set aside by the court rendering it before the judgment has become final or appeal has been perfected. Moreover, errors in the application of the law and the appreciation of the evidence are judicial in nature. The remedy therefore of the complainants should likewise be judicial. 2. However, respondent may be held liable for gross ignorance of the law for imposing a straight penalty of six (6) years of imprisonment on the accused in his modified judgment in the case for homicide. The application of the Indeterminate Sentence Law is mandatory where imprisonment would exceed one (1) year. 11 And in applying the Indeterminate Sentence Law for offenses penalized under the Revised Penal Code, the indeterminate sentence should have a fixed minimum and maximum. 12 In this case, what was imposed was a straight penalty which is erroneous. 13 We agree with aforesaid findings of the Office of the Court Administrator on both points. Not every error or mistake of a judge in the performance of his duties makes him liable therefor. To hold a judge administratively accountable for every erroneous ruling or decision he renders, assuming that he has erred, would be nothing short of harassment and would make his position unbearable. For no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment. 14 In the case at bar, respondent judge cannot be faulted for modifying his decision after considering the two (2) mitigating circumstances of want of intent to commit so grave a wrong and sufficient provocation which immediately preceded the act, set forth in the motion for reconsideration filed by the accused. Under the law, a judgment of conviction may, upon motion of the accused, be modified or set aside by the court rendering it before the judgment has become final or appeal has been perfected. The fact that respondent judge' s appreciation of the evidence differed from that of petitioners which could be biased, does not warrant the conclusion that said judge has rendered an unjust judgment nor that he is ignorant of the law. In the absence

248 of any indication 1) that the trial court's conclusion is based entirely on speculations; 2) that there is grave abuse of discretion; 3) that the court, in making its findings went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee, or; that the judgment is based on a misapprehension of facts, or; that the presiding judge is blatantly biased, the general rule that the trial court' s findings of fact should be given great weight still stands. However, respondent judge is liable for gross ignorance of the law for imposing a straight penalty of six (6) years imprisonment on the accused in his modified judgment in the case for homicide. It is basic law that, as stated above, the application of the Indeterminate Sentence Law is mandatory where imprisonment exceeds one (1) year, 15 except only in the following cases: "a. Offenses punished by death or life imprisonment. b. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115). c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art. 139), or espionage (Art. 117). d. Those convicted of piracy (Art. 122). e. Habitual delinquents (Art. 62, par. 5). Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L28547, Feb. 22, 1974). Offender is not disqualified to avail of the benefits of the law even if the crime is committed while he is on parole. (People v. Clareon, CA 78 O.G. 6701, Nov. 19, 1982). f. Those who escaped from confinement or those who evaded sentence. g. Those granted conditional pardon and who violated the terms of the same (Art. 159). (People v. Corral, 74 Phil. 359). h. Those whose maximum period of imprisonment does not exceed one year. Where the penalty actually imposed does not exceed one year, the accused cannot avail himself of the benefits of the law, the application of which is based upon the penalty actually imposed in accordance with law and not upon that which may be imposed in the discretion of the Court. (People v. Hidalgo, [CA] G.R. No. 00452CR, Jan. 22, 1962). i. Those who are already serving final judgment upon the approval of the Indeterminate Sentence Law." 16 The need for specifying the minimum and maximum periods of the indeterminate sentence is to prevent the unnecessary and excessive deprivation of liberty and to enhance the economic usefulness of the accused, since he may be exempted from serving the entire sentence, depending upon his behavior and his physical, mental, and moral record. The requirement of imposing an indeterminate sentence in all criminal offenses whether punishable by the RPC or by special laws, with definite minimum and maximum terms, as the Court deems proper within the legal range of the penalty specified by the law must, therefore, be deemed mandatory. 17 In crimes punishable under the Revised Penal Code, the maximum term of the indeterminate penalty is determined in accordance with the rules and provisions of the Code exactly as if the Indeterminate Sentence Law had never been enacted. The rules and provisions which must be applied to determine the maximum term of the indeterminate penalty are those provided in Articles 46, 48, 50 to 57, 61, 62 (except paragraph 5), 64, 65, 68, 69, and 71. 19 However, the aforesaid rules and provisions in those articles, particularly Arts. 50 to 57, 62, 64 and 65, are not applicable in fixing the minimum term of the indeterminate penalty. The Court has unqualified discretion to fix the term of the

249 minimum. 20 The only limitation is that it is within the range of the penalty next lower to that prescribed by the Code for the offense committed, without regard to its three (3) periods. 21 Take the present case, for example, of homicide in which two (2) mitigating circumstances attended its commission. The penalty for homicide prescribed by Article 249 of the Revised Penal Code is reclusion temporal. Since two (2) mitigating circumstances and no aggravating circumstance attended the commission of the offense, said penalty shall be lowered by one degree pursuant to Article 64 paragraph 5 of the same Code, which in this case is prision mayor. This penalty shall be imposed in its medium period considering that no other modifying circumstance attended the commission of the offense, the two (2) mitigating circumstances having been already taken into account in reducing the penalty by one (1) degree lower (Basan v. People, L-39483, 29 November 1974, 61 SCRA 275). Applying the Indeterminate Sentence Law, the minimum of the penalty shall be within the range of the penalty next lower in degree which is prision correccional and the maximum of which shall be within the range of the medium period of prision mayor. 22 Since respondent judge imposed the straight penalty of six (6) years which is erroneous, he is therefore liable for gross ignorance of the law. This Court has held that when the law is so elementary, not to know it or to act as if one does not know it, constitutes gross ignorance of the law. 23 Likewise, that unawareness of and unfamiliarity with the application of the Indeterminate Sentence Law and duration and graduation of penalties merit disciplinary action, from reprimand to removal. 24 Respondent judge cannot shirk responsibility for imposing said erroneous penalty by saying, as he did in his motion for extension dated 3 June 1994, 25 that he in fact sought and adopted the opinion of one Judge Nemesio Felix. A judge should have moral and intellectual courage and independence of mind in the discharge of his duties for only in that way can he merit his judicial position and the support and confidence of the people in him. 26 Respondent judge owes it to the public and to the legal profession to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. Party litigants will have great faith in the administration of justice if judges cannot justly be accused of apparent deficiency in their grasp of the legal principles. 27 Finally, this Court takes notice of the fact that respondent judge filed his comment on this present petition more than two (2) years from the time the Office of the Court Administrator through then Deputy Court Administrator Juanito Bernad, issued a directive for him to do so. As a judge, respondent ought to know that all directives coming from the Office of the Court Administrator and his deputies are issued in the exercise of administrative supervision of courts and their personnel, hence, they should be respected. His excuses that the complaint was unquestionably, obviously, and completely baseless; that complainants were going to withdraw their complaint, and; that he was under severe stress are not enough for him to ignore said Office's directives. It took a resolution of the Court itself for respondent judge to finally file his comment. Even then, respondent judge had to ask for several extensions before complying with this Court's orders. 28 WHEREFORE, the Court, resolving to hold respondent Judge Salvador P. de Guzman, Jr. administratively liable for gross ignorance of the law, imposes on him a FINE of Five Thousand Pesos (P5,000.00) WITH A STERN WARNING

250 that a repetition of the same or similar act will be dealt with more severely. Additionally, he is hereby ADMONISHED for failure to file promptly his comment as directed by the Office of the Court Administrator. SO ORDERED.

[Adm. Matter No. RTJ-95-1303. August 11, 1997.] ATTY. GLADDY S. BERNABE, complainant, vs. HON. JUDGE SALVADOR A. MEMORACION, respondent. DECISION In his letter dated 20 June 1994 and addressed to the Court Administrator, complainant Atty. Gladdy S. Bernabe of the Commission on Human Rights (CHR) asked this Court to determine the appropriateness of the act of respondent Judge Salvador A. Memoracion in modifying the sentence of the accused in Criminal Case No. 1771-227. From the documents submitted by the complainant to support his allegations, it appears that an information for Homicide with Double Frustrated Homicide was filed with the Regional Trial Court (RTC) of Basilan against three Marine soldiers namely, Pfc. Vicente Machon, Pfc. Jerramy Degollado, and Pfc. Renato Castulo. That case was docketed as Criminal Case No. 1771-227 and raffled to Branch 2 of the said court, which is presided by the respondent Judge. After trial on the merits, the respondent Judge rendered a judgment, the decretal portion of which reads in part as follows: WHEREFORE, premises considered, this Court finds the accused, PFC VICENTE MACHON, PFC JERRAMY DEGOLLADO and PFC RENATO CASTULO, GUILTY beyond reasonable doubt, all as principal, for the crime of Homicide and Double Frustrated Homicide as charged in the information and which crime is penalized and defined under Art. 249 of the Revised Penal Code. And taking into consideration all the aggravating circumstances, like evident premeditation, used [sic] of high-powered firearms, revenge, nocturnity and grave abuse of power, which were presence [sic] in the commission of the crime, as well as the provisions of the Indeterminate Sentence Law, hereby sentences each and every accused to suffer an imprisonment of TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS, as minimum to FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS as maximum, which is the medium period of Prision Mayor in its maximum period to Reclusion Temporal in its medium period. And ordering each of the three (3) accused to jointly and severally pay the heirs of the late PO1 Efren Cruz in the amount of P50,000.00 as moral damages. And further to pay jointly and severally another amount of P500.00 as cost of the proceeding, but in both cases, no subsidiary imprisonment shall be meted on anyone of them in case of their insolvency. Upon the accused's second motion for reconsideration, however, the respondent Judge modified the judgment by reducing the imprisonment penalty to six (6) years. He denied the prosecution's motion to reconsider the modification and granted the application of the accused for probation. The respondent Judge admitted that he modified the decision but that he did so before it became final, which is allowed under Section 7, Rule 120 of the 1985

251 Rules of Criminal Procedure. He claimed that the reasons adduced by the accused in their motion for the modification of the judgment "are legal, reasonable and justifiable and are within the context of the evidences [sic] presented by the parties"; besides, the prosecution did not even file an opposition to that motion nor did it present any objection during the hearing thereof, but instead, it manifested that it was submitting the motion for resolution without any further arguments. He further alleged that he denied the prosecution's motion for the reconsideration of the modified judgment because its opposition, which was presented after he had already granted the accused's motion, did not present any legal issues that would justify the setting aside of the said order. He then concluded that "there was no error of judgment or grave abuse of discretion ever committed in modifying [the] decision of October 4, 1994." In his Memorandum to the Court, then Deputy Court Administrator Juanito A. Bernad, with the approval of Court Administrator Ernani Cruz Pao, recommended that the respondent Judge be (a) REPRIMANDED for his failure to exercise due care in applying the penalties provided for in the Revised Penal Code or the other laws, with a stern warning that a repetition of a similar offense in the future will be dealt with more severely; and (b) REQUIRED to explain the discrepancies in his date of birth as appearing in his service record, GSIS membership form, and the Office of the Bar Confidant, as well as the reason why he filed a letter dated 27 August 1991 requesting that his date of birth be changed from 14 August 1927 to 20 March 1924. On 15 March 1995, this Court directed the respondent Judge to SHOW CAUSE why no disciplinary sanction should be imposed upon him for gross ignorance of law or incompetence and for grave abuse of authority (1) for imposing upon each of the three accused in Criminal Case No. 1771-227 a single indeterminate penalty of 12 years, 5 months, and 11 days as minimum, to 14 years, 10 months and 20 days, as maximum; and (2) for later reducing the penalty to only six (6) years for each of the accused. If further resolved to REQUIRE the respondent Judge to explain the discrepancies in his alleged date of birth as appearing in his service record, GSIS membership form, and his record in the Office of the Bar Confidant. In his Reply and Manifestation dated 30 March 1995, the respondent Judge contended that since the judgment was not yet final, he could modify it pursuant to Section 7, Rule 120 of the 1985 Rules of Criminal Procedure; that he found the modification to be in order after a review of all the facts and circumstances of the cases and an evaluation of the two motions of the accused; and that if any error was committed, it was one of judgment which cannot be the subject of any administrative charge. He stressed that the prosecution could have appealed but did not do so, thereby showing that it was satisfied with the modified sentence. He further contended that he committed an honest mistake in appreciating in the original decision the aggravating circumstances of evident premeditation, presence of superior force, nocturnity, revenge and grave abuse of power because these are not even alleged in the information. Besides, he took into account the fact that the accused, who are members of the Marine Corps of the Philippine Navy, were first offenders and had no intention to commit so grave a wrong as that committed. Had he not shown them any compassion and understanding by granting them probation, he would have suffered "outrage, anger and madness from the whole battalion of Marine Officers and Men in Basilan," and if that outrage and anger were spewed upon him no government officials, not even members of the judiciary would come forward to give aid and comfort, except his family and immediate relatives. He also impressed upon this Court that the situation in Basilan is far different from that in other provinces in the country, for in Basilan "[k]idnappings with ransoms are weekly occurrences, big time illegal

252 loggers, high incidents [sic] of drug trafficking are common crimes which in spite of the presence of large number of armed forces remained unabated." He further narrated the sad plight of the Judges assigned in Basilan. As to the discrepancy in his date of birth, the respondent Judge now believes, after considering the circumstances, that the date appearing in the baptismal certificate which he submitted is not correct; hence, he will just continue to perform his duties as a Judge on the basis of the date of birth 14 August 1927 appearing in his service record. On 26 July 1995, the Court referred this case to the Office of the Court Administrator for evaluation, report, and recommendation. The Office of the Court Administrator, through Deputy Court Administrator Zenaida N. Elepao, then submitted a Memorandum wherein it made the following findings: A careful perusal of the records and of the circumstances attending the case, convinces us that respondent Judge indeed committed errors and acted without careful and prudent examination and study of the facts and the applicable law when he reduced the sentence he originally imposed to six (6) years. This manifestation of ignorance of the law by respondent Judge cannot be tolerated with a misplaced compassion, even considering the hazardous environment of his court in what is often times a war zone in Basilan. As a magistrate of law, he is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules. While judges should not be disciplined for inefficiency on account merely of occasional mistakes or errors of judgment, it is imperative that they be conversant with basic legal principles. . . . (Ubongon vs. Mayo, 99 SCRA 30). When a judge acts fraudulently or with gross ignorance, administrative sanctions are called for as an imperative duty of the court (Guillermo vs. Judge Reyes, A.M. No. RTJ-93-1088, January 18, 1995). She then recommended that the respondent Judge be REPRIMANDED and be meted the penalty of fine in the amount of five thousand pesos (P5,000.00) with stern warning that a repetition of the same or similar act or offense in the future will be dealt with more severely. We agree with the Office of the Court Administrator that the respondent Judge showed gross ignorance of the law when he reduced the penalty to only six years. We find, however, more of such ignorance. Accordingly, a more severe penalty is in order. Although captioned as one for "Homicide with Double Frustrated Homicide," the information in Criminal Case No. 1771-227 is actually for three separate crimes of (a) homicide for the death of SPO1 Efren Cruz, (b) frustrated homicide for the infliction of gunshot wounds on SPO3 Antonio Martin and (c) frustrated homicide for the infliction of gunshot wounds on PO3 Amergani Mariano. The information reads as follows: That on or about the 16th day of August 1991, and within the jurisdiction of this Honorable Court, viz., at Townsite, Municipality of Maluso, Province of Basilan, Philippines, the above named accused, armed with M-16 Rifles, conspiring and confederating together, aiding and assisting one with the other, and with intent to kill, did then and there willfully, unlawfully and feloniously assault, attack and shoot at the persons of SPO3 Antonio Martin, PO3 Amergani Mariano, PO3 Arip Mohammad and SPO1 Efren Cruz with their firearms, thereby inflicting gunshot wound upon the body of SPO1 Efren Cruz which caused his death, while SPO3

253 Antonio Martin, PO3 Amergani Mariano and PO3 Arip Mohammad sustained gunshot wounds on their bodies, thus the accused have performed all the acts of execution which would have produced the crime of multiple homicide as a consequence thereof, but which nevertheless did not produce it by reasons or causes that is (sic) due to the medical assistance rendered to the latter, which prevented their death. Contrary to law. Nowhere is it suggested that what was committed was a complex crime under Article 48 of the Revised Penal Code. Neither is it shown that the accused has moved to quash the information on the ground of duplicity under paragraph (e), Section 3, Rule 117 of the Rules of Court. The accused could therefore be convicted of three separate crimes and sentenced to suffer the penalty for each of them, as they were deemed to have waived the objection to multiplicity of charges. 1 Accordingly, the single indeterminate penalty of imprisonment imposed by the respondent Judge after applying the Indeterminate Sentence Law is patently wrong. Even if it be conceded ex gratia that a complex crime was charged and proven, the application of the indeterminate penalty is also erroneous. Under such assumption, the penalty imposable is the maximum period of the penalty for the more serious offense, viz., homicide under Article 249 of the Revised Penal Code, which carries a penalty of reclusion temporal. Such maximum period is from 17 years, 4 months, and 1 day to 20 years. Applying the Indeterminate Sentence Law, the indeterminate penalty would be that whose minimum would be within the range of the penalty next lower in degree (prision mayor) to the prescribed penalty (reclusion temporal) and whose maximum should be that which, in view of the modifying circumstances, could be properly imposed under the Revised Penal Code. 2 Therefore, the minimum of the indeterminate penalty shall not exceed prision mayor, whose range is from six (6) years and one (1) day to twelve (12) years. 3 What the respondent Judge imposed as the minimum, viz., 12 years, 5 months, and 11 days, which he describes to be the "medium period of prision mayor" is entirely wrong not only because it already exceeded prision mayor, but also because "it is not the medium period of prision mayor." The medium period of prision mayor is from eight (8) years and one (1) day to ten (10) years. Even assuming further that the respondent Judge did not consider Article 18 of the Revised Penal Code on complex crimes and simply believed, as he did, that only Article 249 of the Revised Penal Code was violated, still the sentence imposed by him is wrong. Having found proven the aggravating circumstances, "like evident premeditation, used [sic] of high-powered firearms, revenge, nocturnity and grave abuse of power," and not having found any mitigating circumstance, the proper imposable penalty pursuant to paragraphs 3 and 6, Article 64 of the Revised Penal Code would be reclusion temporal in its maximum period. Applying the Indeterminate Sentence Law, the accused could be sentenced to an indeterminate penalty whose minimum would be within the range of prision mayor and whose maximum would be reclusion temporal in its maximum period. The reduction of the penalty to only six years demonstrated beyond cavil gross ignorance of the law. That penalty falls within the range of prision correccional, which has a duration of from six (6) months and one (1) day to six (6) years. The reduced penalty is therefore two degrees lower than that prescribed by law for homicide. Since no mitigating circumstance was in fact found in the original decision, nothing could justify the reduction of the penalty to six (6) years of prision correccional. Not even the claim of the accused in their motion for reconsideration that "they did not intend to commit the act of killing and harming

254 the policemen [the victims] in the police station," which the respondent Judge accepted as a mitigating circumstance, could justify such reduction. Even if the mitigating circumstance of praeter intentionem 4 were appreciated, and still under the assumption that one single penalty under Article 249 is permissible, the said mitigating circumstance would be offset by any of the aforementioned aggravating circumstance pursuant to paragraph 4, Article 64 of the Revised Penal Code. All told, the respondent Judge's gross ignorance of the law is inexcusable. That, indeed, would be very distressing considering that his service record shows that he has been in the Judiciary for twenty-nine years already. Time and again, this Court has stressed that a judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules. 5 It is imperative that he be studious of and conversant with basic legal principles. 6 He owes to the dignity of the court he sits in, to the legal profession he belongs, and to the public who depends on him, to know the law which he is called upon to interpret and apply. 7 Verily, it would not serve the interests of the judicial system for judges to be woefully lacking in the type of legal knowledge generally presumed by practitioners of the law to be fundamental. 8 The penalty then recommended by the Office of the Court Administrator is too light. A fine of Forty Thousand Pesos (P40,000.00) is reasonable. As to the respondent Judge's date of birth, there was an obvious attempt on his part to insist on a date (20 March 1924) earlier than that which appears in all his records, so that he could have compulsorily retired on 20 March 1994. He is now withdrawing his request for a change of his date of birth, and he expresses preference to let stay what appears in his records. A doubt has been cast on the date of the respondent Judge's birth. He should submit indubitable proof of the correct date. WHEREFORE, for gross ignorance of law, respondent Judge SALVADOR A. MEMORACION is hereby fined in the amount of FORTY THOUSAND PESOS (P40,000.00) and warned that the commission of the same or similar acts in the future shall be dealt with more severely. SO ORDERED.

[G.R. No. 110163. December 15, 1997.] EDUARDO A. ZANORIA, petitioner, vs. THE COURT OF APPEALS, respondent. DECISION Petitioner Eduardo A. Zanoria was indicted for violation of Section 9, 1 Article II of Republic Act No. 6425 2 before the Regional Trial Court of Cebu, Branch 15, in an information which reads as follows: "That on or before the 16th day of February, 1988, at about 5:30 o'clock in the morning, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, did then and there plant, till, cultivate and culture marijuana plants, a source of a prohibited drug, without authority of law. cdasia CONTRARY TO LAW." 3 On arraignment, petitioner pleaded not guilty to the charges.

255

The prosecution's recital of facts is summarized as follows: Sergeants Joel Absin and Hermes Recla, both members of the Philippine Army detailed with the 7th Narcotics Command (Narcom) stationed at Camp Lapu-lapu, Cebu City, testified that on or about 3:30 o'clock in the morning of February 16, 1988, they were briefed by their commanding officer, Major Vivencio Ramilo, on a mission to uproot full-grown marijuana plants in the mountains of Sitio Kabulihan, Barangay Cuba and Talamban, Cebu, allegedly cultivated or cultured by a certain Eddie. The assault teams proceeded on board a military truck to the area and reached the place at around 5:00 o'clock a.m. With the help of a guide, the group was able to determine the exact location of the marijuana plantation. 4 While casing the area, they noticed a person, later identified as petitioner, emerging from a nipa hut to inspect the plantation. The Narcom agents immediately apprehended him and they alleged that during tactical interrogation, he broke down and cried and admitted ownership of the field. The agents uprooted a total of 3,500 marijuana plants and loaded the same on a military truck and brought them to their headquarters. Twenty samples of the seized items were submitted to the Philippine Constabulary Crime Laboratory in Cebu City and forensic chemist Myrna Areola confirmed that they were indeed marijuana plants. The rest of the plants were incinerated. 5 Petitioner denied the charge against him and implicated a certain Eusebio Geonzon Jr. and his military friends of framing him The following witnesses were presented by the defense: Expedita Zanoria, Pedro Borres, and petitioner himself Petitioner's wife Expedita testified that sometime in July 1987, he and their neighbor, Eusebio Geonzon Jr., had a dispute when the latter killed their pig for destroying his plants. Upon his refusal to pay P950.00 as indemnity, Geonzon was summoned before Barangay Captain Pedro Borres. He paid the amount after a week but, allegedly, not without uttering threatening remarks such as, "Do not regret, because I have friends in the army." On this ground, she surmised that Geonzon had something to do with the arrest of her husband. 6 As Barangay Captain of Adlawan at the time of the occurrence of the incident, Borres narrated that at about 9:00 o'clock a.m. of February 16, 1988, he saw petitioner with the Narcom agents on board a truck. He asked the latter why he was with such group and the latter answered that he was requested to help uproot marijuana plants in the mountains of Taptap some five kilometers from Adlawan. In support of Expedita's theory, he stated that he was apprised of the dispute between Geonzon and petitioner and did, in fact, call the parties for conciliation to his barangay office. After settling the same, however, he observed Geonzon's demeanor to be vindictive. When Borres testified on May 14, 1990, he presented to the court the record book during his incumbency as barangay captain. Upon cross-examination, he admitted however, that the entries therein concerning the settlement of the subject dispute were not signed because the parties agreed to make the necessary payments at their house. 7 Petitioner, on the other hand, testified that on February 16, 1988, at about 3:00 o'clock a.m., his wife woke him up and disclosed that somebody was calling him downstairs. When he opened the door, several persons pointed their firearms at him and immediately effected a search of his house. Subsequently, he was forced to board a six by six military truck en route to the mountains of Sitio Kabulihan. He was apparently ordered by his captors to help them carry freshly uprooted

256 grass to their vehicle. When the "grasses" had been secured, the truck left for the city. On their way back, the truck passed by their house and he asked the driver to stop so he could alight. An officer beside him rejected his request and declared that he would be investigated at Camp Lapu-lapu in Lahug for his participation in the cultivation of the seized marijuana plants. In the course of the investigation, he was allegedly maltreated by an investigator and was coerced to sign a waiver under threat of summary execution. 8 He denied Sgt. Absin's allegation that he admitted planting or owning the marijuana plantation. He likewise averred that at the time he carried the grass he did not know what it was and was under the impression that it was plain grass. On cross-examination; he professed that he never heard of nor saw marijuana prior to February 16, 1988. 9 After trial on the merits, petitioner was found guilty beyond reasonable doubt in a decision by the trial court, 10 the dispositive portion of which reads: "WHEREFORE, in view of all the foregoing evidences (sic), arguments and considerations, this court hereby finds the accused Eduardo Zanoria GUILTY beyond reasonable doubt, of the crime of Violating Sec. 9, Art. II of RA 6425 in relation to Sec. 2 thereof which is defined as follows: 'Cultivate or culture which means the act of knowingly planting, growing, raising or permitting the planting, growing or raising of any plant which is the source of a prohibited drug,' as he is hereby sentenced to Twenty Years and a fine of Twenty Thousand (P20,000.00) Pesos. IT IS SO ORDERED." 11 On appeal, the Court of Appeals in its November 23, 1992 decision, affirmed the findings of the trial court but modified it as to the penalty imposed viz.: "WHEREFORE, the decision appealed from is hereby AFFIRMED, subject to the modification that the accused-appellant Eduardo A. Zanoria is sentenced to suffer an indeterminate prison term of from twelve (12) years, five (5) months and twelve (12) days, as minimum, to fourteen (14) years, eight (8) months and one (1) day, as maximum and to pay a fine of P20,000.00 with subsidiary imprisonment in case of insolvency; and to pay the costs. SO ORDERED." 12 Petitioner assails the appellate court in giving credence to the testimony of the prosecution witnesses in spite of the blatant inconsistency between their joint affidavit and their testimonies in court. After an exhaustive review of the evidence on record, this Court is constrained to uphold the conviction of petitioner. Sgts. Absin and Recla testified that upon arriving at the plantation site they immediately surrounded the area. After a few minutes, they saw petitioner come down from a nipa hut and inspect the marijuana plants. When he became conscious of their presence at such time of the day, they instantly pounced on him. The joint affidavit 13 of prosecution witnesses Sgts. Absin, Recla and a certain Yparraguirre, however, stated that appellant " personally led us to the plantation site." Petitioner contends that if he were the one who personally led the agents to the site, as claimed in the joint affidavit, then he could not have been the person whom they saw emerge from the nipa hut and who inspected the marijuana plants.

257 He submits that this inconsistency is irreconcilable and, therefore, fatal to the case of the prosecution. The alleged inconsistency is impertinent in the case at bar. The relevant portions of the joint affidavit are hereunder reproduced as follows: "That on or about 5:00 o'clock in the morning of the same date, we arrived at the plantation site and sought (sic) the aide (sic) of our guide, we were able to locate the place wherein the prohibited plants are (sic) being cultured, as we approach(ed) to (sic) the place, we saw a small hut a few meters away from the plantation. At a discreet distance, one male person came out from the hut and walk(ed) straight to the plantation and inspect(ed) the plants, as we came nearer the man was able to returned (sic) to the hut and talk to other people thereat. llcd That we are doubtful that we are (sic) noticed by the man and he might escape. We members of the team immediately rush(ed) up to his position and effect(ed) his arrest after identifying ourselves as Narcom agent(s), and he was then identified as Eduardo Zanoria y Archival, 30 years old, married, farmer and residence (sic) of Sitio Kabulihan, Brgy. Gubam Cebu City; That, on or about 5:10 in the morning of the same date, after our tactical interrogation and interviewed (sic), the suspect broke into tears and admitted his guilt and personally led us to the plantation site which was uprooting the marijuana plants and we were able to remove from the soil three thousand five hundred (3,500) full (sic) grown marijuana plants." (Emphasis supplied) A careful and judicious examination of the subject affidavit shows no reason to disturb the findings of both the trial and appellate courts. It can be gleaned therefrom that the operation conducted by the Narcom agents consisted of two stages: first, their arrival at the site and the consequent apprehension of petitioner and second, after interrogation, when he personally led them to the plantation site. These facts confirm the absence of inconsistency that was imputed by petitioner against the prosecution witnesses. It must be noted further that the agents launched their operations after receiving a report that marijuana plants were being cultured in the hinterlands of Sitio Kabulihan and that a certain Eddie supervised the same. Petitioner argues that his mere presence at the site during the operations cannot justify his conviction for "knowingly, planting, growing or raising of any plant which is the source of a prohibited drug." He contends that conviction under Section 9 of R.A. No. 6425 requires a series of human activities, that is, the deliberate planting, growing or raising of these plants. Such assertion is misplaced. Evident on record is that petitioner failed to adequately explain his presence at the site teeming with fully grown marijuana plants. His claim that he has never seen nor heard of marijuana is incredulous. Needless to state, the defense of denial cannot prevail over the positive identification of the accused. 14 Moreover, the latter failed to show any reason why the Narcom agents would make such a serious charge against him considering that when the issue of credibility is raised, appellate courts will generally not disturb the findings of the trial court. 15 We quote with approval the respondent court's observation, thus: "Indeed, if it is true as the accused claimed that at about 3 in the morning of the date in question, it was his wife who wake (sic) him and told him to rise because

258 somebody was calling his name from downstairs, and as he stood up and opened the door, he saw armed men pointing their firearms at him, his wife should be the right person to confirm what actually happened. But there is nothing in her testimony that (would) suggest or corroborate his claim that he was apprehended at their house." (Emphasis supplied). The testimony of Expedita pertained solely to Geonzon's probable participation in the arrest of her husband. To further prove petitioners' innocence, Barangay Captain Borres was presented as witness. On this score, we subscribe to the findings of the lower court that the apparent alterations in the record book were made only to accommodate the defense's theory that petitioner was indicted on trumped-up charges. Page 24 thereof shows that no case was ever brought before the barangay office for the month of June 1987. Under an entry dated July 1987, which is written in black ink, the alleged confrontation and settlement between Geonzon and petitioner was reduced to writing. On the same page, however, an entry which appears to be dated "Aug. 1987" was obliterated using a blue-colored pen and transferred to a line following the last entry of the supposed settlement between the parties. We therefore, share the lower court's incredulity that these entries were made by Bores in July 1987. The defense would like the Court to believe that the arrest of petitioner was fomented by a disgruntled Geonzon for having been required to pay P950.00 as indemnity for killing a pig. This excuse is too flimsy to even be considered by this Court and it utterly fails to convince us of petitioner's innocence. The factual milieu of this case cannot but lead us to "a fair and reasonable conclusion pointing to the accused as the author of the crime." We do not, however, concur with the appellate court's imposition of the prison term ranging from twelve (12) years, five (5) months, and twelve (12) days, as minimum, to fourteen (14) years, eight (8) months, and one (1) day, as maximum, on petitioner because this proceeds from the assumption that the former penalty under Section 9 of R.A. No. 6425 which was fourteen (14) years and one (1) day to life imprisonment was equivalent to reclusion temporal to reclusion perpetua. This is of course erroneous as we already ruled that the "penalty of reclusion perpetua is not synonymous with life imprisonment as the former entails [an imprisonment of] at least 30 years and carries with it accessory penalties whereas the latter has no definite duration and does not carry any accessory penalty." 16 Moreover, there is nothing in R. A. No. 6425, before its amendment by Republic Act No. 7659, 17 which will support the theory that the scheme of penalties provided for in the Revised Penal Code shall apply suppletorily to the former. Although the Indeterminate Sentence Law applies in this case, the appellate court should have followed instead the provision in fixing the indeterminate penalty for offenses punished by a special law which, in this case, is R.A. No. 6425. This provision provides that "the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." Thus, the appellate court erred in fixing the minimum penalty at (12) years, five (5) months and twelve (12) days, which is less than the minimum term prescribed tinder Section 9 of R.A. No. 6425. In view of the circumstances obtaining in the case at bar, the penalty should be fourteen (14) years and one (1) day, as minimum, to twenty (20) years and one (1) day, as maximum. WHEREFORE, in view of the foregoing, the appeal is DISMISSED and the decision of the Court of Appeals finding appellant Eduardo Zanoria guilty beyond reasonable doubt for violation of Section 9 Article II of R.A. No. 6425 is hereby AFFIRMED with the MODIFICATION that he should be sentenced, as he is

259 hereby sentenced, to serve an indeterminate penalty of imprisonment of fourteen (14) years and one (1) day, as minimum, to twenty (20) years, as maximum, and to pay a fine of P20,000.00 with subsidiary imprisonment in case of insolvency. Costs against petitioner. SO ORDERED

[G.R. No. 121179. July 2, 1998.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONINE B. SALEY a.k.a. ANNIE B. SALEY, accused-appellant. DECISION The case before the Court focuses on the practice of some "illegal recruiters" who would even go to the extent of issuing forged tourist visas to aspiring overseas contract workers. These unsuspecting job applicants are made to pay exorbitant "placement" fees for nothing really since, almost invariably, they find themselves unable to leave for their purported country of employment or, if they are able to, soon find themselves unceremoniously repatriated. This Court once described their plight in a local proverb as being "naghangad ng kagitna, isang salop ang nawala." 1 In this appeal from the 3rd March 1995 decision of the Regional Trial Court of La Trinidad, Benguet, Branch 10, 2 appellant Antonine B. Saley, a.k.a. Annie B. Saley, seeks a reversal of the verdict finding her guilty beyond reasonable doubt of eleven counts of estafa punishable under the Revised Penal Code and six counts of illegal recruitment, one committed in large scale, proscribed by the Labor Code. Cdpr Appellant was indicted in eleven separate informations for estafa under Article 315, paragraph 2(1), of the Revised Penal Code. The cases (naming the complainants and stating the amounts therein involved) include: (1) Criminal Case No. 92-CR-1397 3 (Francisco T. Labadchan P45,000.00); (2) Criminal Case No. 92-CR-1414 (Victoria Asil P33,000.00); (3) Criminal Case No. 92CR-1415 (Cherry Pi-ay P18,000.00); (4) Criminal Case No. 92-CR-1426 (Corazon del Rosario P40,000.00); (5) Criminal Case No. 92-CR-1428 (Arthur Juan P24,200.00); (6) Criminal Case No. 93-CR-1644 (Alfredo C. Arcega P25,000.00); (7) Criminal Case No. 93-CR-1646 (Brando B. Salbino P25,000.00); (8) Criminal Case No. 93-CR-1647 (Mariano Damolog P25,000.00); (9) Criminal Case No. 93-CR-1649 (Lorenzo Belino P25,000.00); (10) Criminal Case No. 93-CR-1651 (Peter Arcega P25,000.00) and (11) Criminal Case No. 93-CR-1652 (Adeline Tiangge P18,500.00). Except for the name of the offended party, the amount involved and the date of the commission of the crime, the following information in Criminal Case No. 93CR-1652 typified the other informations for the crime of estafa: "That in or about the month of December, 1991, and sometime prior to or subsequent thereto, at Buyagan, Municipality of La Trinidad, Province of Benguet, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud ADELINE TIANGGE y MARCOS and by means of deceit through false representations and pretenses made by her prior to or simultaneous with the commission of the fraud, did then and there willfully, unlawfully and feloniously defraud said ADELINE TIANGGE y MARCOS, by then and there representing herself as a duly authorized or licensed recruiter for overseas employment, when in truth and in fact she was not, thereby

260 inducing the said ADELINE TIANGGE y MARCOS to give and deliver to her the total amount of EIGHTEEN THOUSAND FIVE HUNDRED PESOS (P18,500.00), Philippine Currency, for placement abroad and after having received it, she appropriated and misappropriated the same for her own use and benefit and despite repeated demands made upon (her) to return the same, she refused, failed, neglected, and still refuses, fails and neglects to comply therewith, all to the damage and prejudice of ADELINE TIANGGE y MARCOS in the total sum aforesaid. "Contrary to law." 4 For the violation of Article 38, in relation to Article 39, of the Labor Code, five separate informations were also instituted against appellant on various dates. These cases (with the names of the complainants) include: (1) Criminal Case No. 92-CR-1396 (Francisco T. Labadchan); (2) Criminal Case No. 92-CR-1413 (Cherry Pi-ay); (3) Criminal Case No. 92-CR-1416 (Victoria Asil); (4) Criminal Case No. 92-CR-1425 (Corazon del Rosario) and (5) Criminal Case No. 92-CR1427 (Arthur Juan). The typical information in these indictments read: "That sometime in the month of April, 1991 and subsequent thereto at Buyagan, Municipality of La Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and knowingly recruit one ARTHUR JUAN for overseas employment, by then and there ably misrepresenting herself as a duly authorized or licensed recruiter when in truth and in fact she fully knew it to be false but by reason of her said misrepresentations which were completely relied upon by Arthur Juan, she was able to obtain from the latter the total amount of TWENTY FOUR THOUSAND TWO HUNDRED PESOS (P24,200.00), Philippine Currency, all to the damage and prejudice of Arthur Juan in the total sum aforesaid. "Contrary to Law." 5 The information in Criminal Case No. 93-CR-1645 for illegal recruitment in large scale under Article 38, paragraph 1, of Presidential Decree No. 442 (Labor Code), as amended, filed on 16 April 1993, read: "That in or about the months of August and September, 1992, in the Municipality of La Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and knowingly recruit the following: PETER ARCEGA, LORENZO BELINO, MARIANO DAMOLOG, FIDEL OPDAS, BRANDO B. SALBINO, DEMBER LEON and ALFREDO C. ARCEGA for overseas employment, by then and there misrepresenting herself as a duly authorized or licensed recruiter when in truth and in fact she was not and by reason of her said misrepresentation which was completely relied upon by the said complainants whom she recruited, either individually or as a group amounting to illegal recruitment in large scale causing economic sabotage, she was able to obtain and received from them the aggregate total amount of ONE HUNDRED SEVENTY FIVE THOUSAND PESOS (P175,000.00), Philippine Currency, all to the damage and prejudice of the foregoing complainants in the total sum aforesaid. "Contrary to law." 6 Appellant pleaded not guilty to all the charges of illegal recruitment and estafa. The criminal cases filed were raffled off to two (2) branches of the Regional Trial Court of Benguet; later, however, the cases were consolidated at the instance of the prosecution.

261 Parenthetically, appellant jumped bail pending trial but she was soon arrested by agents of the Criminal Investigation Service ("CIS"). The Evidence for the Prosecution In Criminal Case No. 92-CR-1397 and Criminal Case No. 92-CR-1396 Francisco Labadchan, a 25-year-old employee in the Navy Base in Pacdal, Baguio City, was introduced to appellant by Crispin Perez. In September 1991, the two went to the house of Conchita Tagle at Kilometer 3, La Trinidad, Benguet, who was known to be recruiting workers for abroad. After Labadchan had expressed interest in applying for a job in Korea, Tagle told Labadchan to prepare P45,000.00, P30,000.00 of which was to be paid that month and the balance of P15,000.00 before his departure for abroad. Labadchan paid Tagle the amount of P30,000.00 on 23 September 1991. Appellant, in turn, received that amount when she went to La Trinidad to "brief" him. She told Labadchan that his flight would be on the 9th of October 1991 and that he should have paid by then the balance of P15,000.00 of the fees. He paid Tagle the P15,000.00 balance on 05 October 1991. When he requested her to make a receipt, Tagle included the amount in the old receipt for the P30,000.00 previously given. Appellant handed over to Labadchan some papers to fill up and gave last-minute instructions before she boarded a green-colored aircraft. On 08 October 1991, Labadchan and his wife went to Manila and stayed, as so instructed by Tagle, at the Prince Hotel near the terminal of the Dangwa bus company in Dimasalang, Manila. There, he met other people, among them, his cocomplainant Arthur Juan. In the morning of 09 October 1991, Labadchan and the others were told to go to the airport with Tagle, where appellant was supposed to give the travel papers including passports and plane tickets for Korea. At the airport, however, appellant told the group that their flight had been re-scheduled for 11 October 1991. Labadchan returned to Baguio City. On 11 October 1991, Labadchan returned to the airport only to be told this time, however, that his passport was still with the Department of Foreign Affairs. Appellant told her husband to accompany Labadchan to the Foreign Affairs office. When Labadchan received the passport, he saw that while his picture appeared on it, the passport was made out in the name of a person from Negros Occidental. Labadchan had to imitate the signature on the passport just so he could get it. Back at the airport, he was allowed inside the terminal but only to be later sent out because the ticket he had was one intended for passage from Korea and not to Korea. Asserting that he and company were mere "chance passengers," appellant sent them all home with a promise that another departure date would be set. She also took back the "show money" of US$1,000.00. Appellant would repeatedly schedule a departure date but nothing tangible came out of her assurances. Finally, Labadchan was able to get appellant to promise that the money he had given her would be refunded. When this promise neither materialized, Labadchan finally reported the matter to the National Bureau of Investigation ("NBI"). In that office, appellant executed a promissory note stating that she would return the amount of P46,500.00, which included the amount of P1,500.00 allegedly used for getting a passport, to Labadchan. 7 In Criminal Case No. 92-CR-1414 and Criminal Case No. 92-CR-1416 Victoria Asil, a 40-year-old housewife from Imelda Village, Roxas Street, Baguio City, heard from her elder sister, Feling Derecto, that appellant was recruiting workers for abroad. During the second week of January 1992, she, along with her husband Gabriel, went to appellant's house in Buyagan, La Trinidad. Appellant assured her that she could have a job in a factory in Korea. Appellant asked for an

262 advance fee of P25,000.00 of the P40,000.00 agreed fee. Victoria gave appellant the "advance fee" on 13 January 1992 at her (Victoria's) shop in Shopper's Lane, Baguio City which appellant acknowledged by issuing a receipt for the amount. She told Victoria to be at appellant's house in Buyagan after three weeks. When Victoria went to appellant's house as so directed, appellant told her that her flight had been postponed supposedly because prior applicants had to be accommodated first. Victoria met appellant seven more times only to be ultimately told that the latter had been allegedly "fooled" by the "main office" in Manila. Appellant, nevertheless, demanded an additional P5,000.00 from Victoria so that she could leave on 18 April 1992. Victoria gave appellant the amount of P5,000.00 at her shop on 31 March 1992 for which appellant gave a corresponding receipt. When on 18 April 1992 still "nothing happened," Victoria demanded from appellant a refund. Appellant gave her an "advance" of P15,000.00. An acknowledgment receipt with appellant's signature affixed thereon would evidence that payment. Appellant, however, failed to return the rest of the promised refund. 8 In Criminal Case No. 92-CR-1413 and Criminal Case No. 92-CR-1415 Cherry Pi-ay, a 26-year-old nursing student from Acop, Tublay, Benguet, was visited once in March 1991 by appellant who encouraged Cherry to apply for work in a textile or a plastic factory in Korea with a monthly salary of US$800.00. Appellant told Cherry that the moment she would pay the amount of P45,000.00, she could be deployed in Korea. Cherry prepared her bio-data and gave it to appellant at the latter's residence during the first week of April 1991. Cherry was able to leave the country on 04 July 1991 after having paid the total amount of P45,000.00. Appellant told her that a certain Ramil would meet her at the airport in Korea. When she arrived, a Filipina, named Marlyn, instead met her. Marlyn introduced herself as appellant's friend and accompanied Cherry to a certain house owned by a Korean. There, Cherry met, among other compatriots, Corazon del Rosario and Jane Kipas. Cherry soon realized that she was not going to have a job in the factory promised by appellant. Instead, she was made to work for the Korean applying rugby on and folding leather jackets. About a month later, men from the Korean Immigration accosted her and the others. Brought in for questioning by Immigration officials, Cherry and her companions were informed that they were illegal workers. After the investigation, Cherry and her group were allowed to go but on 08 August 1991, all were deported. Back to the Philippines, the deportees were assured by appellant that they would get a refund of their money. Cherry executed a sworn statement narrating her experience in Korea. 9 Ayson Acbaya-an, Cherry's "boyfriend" who later was to become her husband, corroborated Cherry's testimony that appellant first received P18,000.00 from Cherry. Thereafter, appellant also received P27,000.00 from Cherry, fifteen thousand pesos (P15,000.00) of which amount came from him. In both instances, appellant signed receipts for the payments. The receipts were among Cherry's papers confiscated in Korea. 10 In Criminal Case No. 92-CR-1425 and Criminal Case No. 92-CR-1426 Corazon del Rosario, a 34-year-old housemaid from 48 Happy Homes, Baguio City, had known appellant, an acquaintance, since 1980. One day in December 1990, she happened to chance upon appellant at a PLDT telephone booth in Kilometer 4, La Trinidad, Baguio City. Appellant, representing herself to be an

263 authorized recruiter, tried to persuade Corazon to work abroad. Corazon showed interest. From then on, appellant would visit Corazon in her brother's house in Kilometer 4. Ultimately, appellant was able to convince Corazon that, for a fee of P40,000.00, she could be sent to Korea. Corazon gave appellant the amount of P15,000.00. She paid the balance of P25,000.00 in May 1991. The payments were both made in the presence of Cherry Pi-ay and Jane Kipas. Appellant issued the corresponding receipts for these amounts. Corazon took the flight for Korea on 28 June 1991. Appellant had instructed Corazon, upon landing in Korea, to call up a certain Ramil. At the airport, Corazon, including her companions among them Jane Kipas, kept on dialing the number but each time only a Korean woman would answer the call. Later, that evening, a certain Marlyn, who introduced herself as appellant's friend, took them to a hotel. There, Marlyn took their "show money" of US$1,000.00. The group stayed overnight in the hotel and the following morning, a Korean took them to a house proximately two hours away by car from the airport. For about a month, they did nothing but apply rugby on leather jackets, for which they were not paid, until a policeman arrived and took all ten of them to the airport. All that the immigration and airport personnel would tell them was that they should be thankful they were only being repatriated home. Immigration and airport authorities confiscated everything that they had. At home, appellant promised to return Corazon's money. Not having received the promised refund, Corazon went to the CIS stationed at Camp Dangwa where, on 28 July 1992, she executed her sworn statement. 11 Avelina Velasco Samidan, a friend of Corazon and in whose house the latter would stay whenever she was in Baguio, corroborated the testimony of Corazon that she gave to appellant the amount of P15,000.00, ten thousand pesos of which amount Corazon borrowed from Avelina, and that some time in April 1991, Corazon withdrew P25,000.00 from the bank which she likewise paid to appellant. 12 In Criminal Case No. 92-CR-1427 and Criminal Case No. 92-CR-1428 Arthur Juan, a 30-year-old farmer from Dumulpot, Tublay, Benguet, first met appellant in her house at Buyagan, La Trinidad, Benguet, when he, together with Maxima Gomez, Tirso Gomez and Francisco Labadchan, went to see appellant who was said to be recruiting workers for Korea. Juan promptly submitted his bio-data form after being told that he could work in a factory in Korea at US$400.00 a month. Appellant quoted a processing fee of P40,000.00. Juan initially paid the amount of P6,500.00 in April 1991. On 09 October 1991, the scheduled date of the flight, Juan went to the airport and gave appellant another P15,000.00; the final balance of the fees were, by their agreement, to be remitted to appellant on a salary deduction basis. Appellant then told Juan that he could not leave on that day (09 October 1991) because the airplane was already full. Appellant took back Juan's passport, telling Juan that he should be able to depart in a few days. Appellant, however, kept on rescheduling the flight for about five more times until it became clear to Juan that he had been deceived. Juan paid out a total amount of P24,200.00, including the US$100.00 that would have been his pocket money, to appellant. The latter executed receipts for the amounts. Juan executed a sworn statement narrating the unfortunate incident. 13 In Criminal Case No. 93-CR-1652 Adeline Tiangge, a 43-year-old housekeeper from Bangao, Buguias, Benguet, learned that appellant was recruiting workers for abroad. Adeline, accompanied by her sister, went to see appellant at her house in Buyagan some time in

264 December 1991. There were others, like her, who also went to see appellant. When she produced the required identification pictures and P1,500.00 for passport processing, appellant told Adeline that she could be a factory worker in Korea with a monthly salary of US$350.00. Appellant agreed to be paid by Adeline the additional P35,000.00 balance by installment. The first installment of P17,000.00 was paid on 15 February 1992, evidenced by a receipt signed by "Antonine Saley," with the remaining P18,000.00 being payable before getting on her flight for abroad. Adeline waited in Baguio City for word on her departure. Adeline, together with some other applicants, thrice went to appellant's office at the Shopper's Lane to check. She also went to Dimasalang, Manila, in front of the Dangwa terminal, for a like purpose. Appellant informed her that she just had to wait for her flight. Adeline, exasperated, finally demanded a refund of the amount she had paid but appellant merely gave her P100.00 for her fare back to Benguet. 14 xxx xxx xxx The sum of the evidence, infra., in Criminal Case No. 93-CR-1645 for illegal recruitment in large scale had been submitted to likewise constitute the evidence to establish the People's case, respectively, in Criminal Case No. 93-CR-1644 Alfredo Arcega, a 42-year-old hotel employee from 16 Q.M. Subdivision, Baguio City, heard from a former co-worker, Fidel Opdas, that appellant was recruiting workers for overseas employment. Interested, he, in the company of his nephew, Peter Arcega, went to appellant's house in Buyagan, La Trinidad. There, he met job applicants Dembert Leon, Mariano Damolog and Brando Salbino. Appellant assured the group that they could get employed in Taiwan for a monthly salary of P12,000.00 to P15,000.00. She told them that the processing and placement fees would amount to P40,000.00 each. Arcega and his companions agreed. On 17 August 1992, Arcega paid appellant P10,000,00 in Dimasalang, Manila. Appellant issued a cash voucher for the amount. She told Arcega to just wait "for the results." On 30 September 1992, appellant asked Arcega for another P15,000.00 which amount he paid. With him at the time were his nephew Peter Arcega, as well as Dembert Leon, Mariano Damolog, Lorenzo Belino and Brando Salbino. Appellant issued a receipt and affixed thereon her signature. Appellant told Arcega that with the payment, his employment abroad was assured. She stressed, however, that the balance of P15,000.00 should be paid before his departure for Taiwan. After following up the matter with appellant in October 1992 and then in December 1992, he finally gave up. Arcega went to the POEA office in Magsaysay Avenue, Baguio City, and when he learned that appellant had pending cases for illegal recruitment, he also filed his own complaint and executed an affidavit before Atty. Justinian Licnachan. 15 Criminal Case No. 93-CR-1646 Brando Salbino, a 36-year-old resident of East Quirino Hill, Baguio City, used to be a "forester" of the DENR. In July 1992, he met appellant at her Buyagan residence after his brother-in-law, Fidel Opdas, had said that she was recruiting workers for abroad. Appellant told him that she could help him get employed in Taiwan with a P12,000.00 monthly salary. Salbino submitted various documents required by appellant. On 11 August 1992, Salbino paid appellant the amount of P10,000.00 at her Dimasalang "temporary office" so that, according to her, his travel papers could be processed. The payment was receipted. On 30 September 1992, he paid her another P15,000.00, for which appellant again issued an acknowledgment receipt.

265 Appellant told Salbino to merely wait in Baguio City. When she failed to show up, he went to appellant's house in Buyagan to verify. She was not there. The following week, he went to Manila with Fidel Opdas hoping to see her. Appellant's whereabouts could not be determined. Having failed to locate her, Salbino and his companions went to the POEA office in Magsaysay, Baguio City. It was at the POEA office that they were to learn that appellant was not in the list of licensed recruiters. He, along with the others, then executed an affidavitcomplaint before Atty. Licnachan. 16 Criminal Case No. 93-CR-1647 Mariano Damolog, a 33 year-old farmer from 26 P. Burgos Street, Baguio City, went to appellant's residence in Buyagan in July 1992 when informed by Fidel Opdas, his co-worker at the MIDO Restaurant, that appellant was recruiting workers for Taiwan. Appellant herself later told Damolog that she was licensed to recruit workers. He forthwith applied for a position at a factory in Taiwan with a salary of between US$400.00 and US$500.00 a month. He, after being required to pay a processing fee, paid the amount of P10,000.00 to appellant at her Manila office. Appellant gave him a cash voucher. Damolog was then supposed to just wait in Baguio City for a telegram. When he did not receive word from appellant, Damolog went to Manila to see what had happened to his application. Appellant was again told to simply stand by in Baguio City. After several days, Opdas, who had meanwhile gone to Manila, told Damolog to see appellant in Manila. In Manila, appellant told Damolog to sign a bio-data form for "screening purposes." Like Peter Arcega, Fred Arcega, Brando Salbino and Lorenzo Belino, he was also asked to pay another P15,000.00. The group went back to Baguio City to raise the amount of P15,000.00 each. On 30 September 1992, he, together with Fred and Peter Arcega, Brando Salbino and Lorenzo Belino, returned to Manila. Damolog handed over his P15,000.00 to appellant who issued an acknowledgment receipt, signed by "Annie Saley" which, according to appellant, was her name. Appellant assured him that he would be among the first to go to Taiwan by December 1992. December 1992 came but no word was received prompting Damolog and his companions to repair to appellant's house in Buyagan. She was not home. Damolog proceeded to Manila where appellant told him to wait a few more days. When still "nothing happened," Damolog and his companions went to the POEA office where Atty. Licnachan issued a certification stating that appellant was not authorized to recruit workers. Damolog and his companions filed a joint affidavitcomplaint executed before Atty. Licnachan 17 against appellant. Criminal Case No. 93-CR-1649 Lorenzo Belino, a 37-year-old farmer from Tawang, La Trinidad, Benguet, was in Manila in August 1992 looking for employment. Fidel Opdas, a companion in his trip to Manila, mentioned that perhaps appellant could help. Belino saw appellant who then told him about the prospect of getting employed in Taiwan. Appellant invited him to see her on 20 September 1992 in Buyagan. On the appointed date, Belino found Mariano Damolog, Fidel Opdas, Brando Salbino, Dembert Leon, Alfredo Arcega and Peter Arcega already in appellant's residence in Buyagan. Appellant asked P10,000.00 from each of them if they wanted her to be "responsible for representing" them to get themselves employed in Taiwan with a monthly income of P15,000.00. When the group agreed, appellant made them fill up and sign a bio-data form. Appellant also made them understand that they would each have to pay her the total amount of P40,000.00, P10,000.00 of which was to be forthwith paid and the balance to be paid as and when everything would have been arranged for their flight to Taiwan.

266

On 23 September 1992, Belino paid appellant the amount of P10,000.00 at her Dimasalang office. Appellant issued a cash voucher therefor. Belino returned to Baguio City. Five days later, Belino went down to Manila after appellant had sent word that he had to come to Manila. On 30 September 1992, Belino paid in Manila the amount of P15,000.00 demanded by appellant. Appellant signed her name as "Annie Saley" on the receipt. Appellant informed Belino that he should wait for her telephone call regarding the schedule of his flight. He waited but when no calls came, Belino and Opdas decided to visit appellant in her house in Buyagan. Appellant asked to be given until January to deploy them in Taiwan. February 1993 came, and still there was no news from appellant. In March 1993, Belino and others, namely, Fidel Opdas, Brando Salbino, Dembert Leon and Alfredo Arcega, 18 decided to file a complaint against appellant with the POEA in Magsaysay Avenue, Baguio City, where their sworn statements were taken. Criminal Case No. 93-CR-1651 Peter Arcega, a 27-year-old cashier from 317 Magsaysay Avenue, Baguio City, also paid the amount of P10,000.00 to appellant for a promised job overseas. A cash voucher was signed by appellant to acknowledge the payment. Peter, subsequently, also paid the amount of P15,000.00 to appellant for which the latter issued a receipt signed by "Annie Saley." He was among those who signed the affidavit-complaint before the POEA. Testifying in Criminal Case No. 93-CR-1645, 19 as a corroborative witness, Dembert Leon, a 25-year-old unemployed from 52-F Tandang Sora Street, Baguio City, said that he, desiring to get an employment abroad, likewise went to see appellant at her residence in Buyagan. Accompanied by Fidel Opdas, Leon was told by appellant to complete the necessary papers, including his bio-data, barangay clearance, ID and NBI clearance. Leon applied to be a factory worker in Taiwan. He was assured a monthly salary of P12,000.00, but first, appellant told him, he should commit to pay a placement fee of P40,000.00 of which amount P10,000.00 had to be paid forthwith. Leon paid and a cash voucher, dated 08 September 1992, was issued by appellant. On 30 September 1992, he paid appellant another P15,000.00 for which another acknowledgment receipt was issued. The remaining P15,000.00 was agreed to be paid at the airport before his flight to Taiwan. No further word came from appellant. Finally, in December 1992, when he and the others called her up, appellant informed them to wait until January 1993. January came and still nothing happened. In March 1993, Leon and the others went to the POEA office to lodge a complaint against appellant. 20 Jose B. Matias, an Attorney II at the POEA Regional Station Unit in Baguio City, received a request for verification on whether or not appellant was a licensed recruiter. In response, he advised that appellant was not authorized to recruit "in the City of Baguio and in the region" from 1989 "to the present." Atty. Matias issued a certification to that effect. xxx xxx xxx The Case for the Defense. The defense posited the theory that appellant merely assisted the complainants in applying for overseas employment with duly accredited travel agencies for and from which she derived a commission. 21 According to the 37-year-old appellant, she used to be the liaison officer of the Friendship Recruitment Agency from 1983 to 1986. In that capacity, she would submit to the POEA "contracts for processing job orders for applicants" and assist applicants prior to their departure at the airport. When the licensed agency closed in 1986, she went to Baguio where she engaged in the purchase and sale of

267 vegetables and flowers. Even then, however, she would not hesitate extending help to applicants for overseas employment by recommending licensed agencies which could assist said applicants in going abroad. She named the Dynasty Travel and Tours and the Mannings International as such licensed agencies. She had, in the process, been able to help workers, like Cherry Pi-ay, Corazon del Rosario, Arthur Juan and Francisco Labadchan to name some, sent abroad. 22 Cherry Pi-ay was able to leave for Kuwait. In 1991, Cherry went to see her again, this time asking for assistance in getting an employment in Korea. She accompanied Cherry to the Dynasty Travel and Tours in Manila that enabled her to get a tourist visa to Korea. Appellant herself later gave Cherry her tourist visa. For Cherry's visa and plane ticket, appellant received from Cherry P15,000.00 and US$250.00. Appellant issued a receipt therefor and delivered the amounts to the Dynasty Travel and Tours which, in turn, issued her a receipt. The CIS men who arrested her in Manila confiscated that receipt. In August 1991, Cherry came back and asked her to look for another travel agency saying she did not like the work she had in Korea. 23 Norma Bao-idang, a former client of the Friendship Recruitment Agency, introduced Corazon del Rosario to appellant. Since the agency had already been closed, appellant referred Corazon to Mannings International in Kalaw Street, Ermita, Manila. Corazon was able to leave for Abu Dhabi where she worked as a domestic helper. In 1991, Corazon again sought appellant's assistance in getting an employment in Korea. Appellant introduced her to Dynasty Travel and Tours which, in turn, helped Corazon get a tourist visa for Korea. She did ask for P15,000.00 and US$250.00 from Corazon but these amounts, being for Corazon's ticket and hotel accommodation, were turned over to Dynasty Travel and Tours. She also knew that Corazon was able to leave for Korea because she herself handed over to Corazon her tourist visa and ticket. Appellant received P2,000.00 from Dynasty Travel and Tours by way of commission. She was also issued a receipt by that travel agency showing that she had turned over to it the amounts received from Corazon but the CIS men took the receipts and other documents from her. When Corazon returned home in 1991 after going to Korea, she again sought appellant's help in looking for a travel agency that could assist her in going back to that country. 24 Appellant came to know Arthur Juan through a vegetable vendor named Maxima Gomez. He asked her for help in securing a tourist visa. Appellant was able to assist him and others, like Francisco Labadchan, Tirso Gomez and Romeo Balao, by referring them to the Dynasty Travel and Tours. Appellant asked from them the amounts of P15,000.00 and US$250.00 which she turned over to the travel agency. Again, she was issued a receipt by that agency but that, too, was confiscated by the CIS agents who arrested her. Of the men who sought her help in going abroad, seven "were able to leave." The others had been re-scheduled to leave but they failed to arrive at the airport. Labadchan and Juan met appellant during the first week of January 1993. She gave them back the plane ticket and the amount of US$250.00 so that they could ask for a refund from the travel agency. The next time she saw Labadchan was at the NBI office when NBI Director Limmayog invited her for questioning. Appellant tried her best to look for a job for Labadchan but the transaction she had with Fast International failed to push through. 25 Appellant helped Victoria Asil secure a tourist visa. The latter's sister was a former client at the Friendship Recruitment Agency who was able to work in Saudi Arabia in 1985. She introduced Victoria to the Dynasty Travel and Tours. Appellant asked Victoria to advance P15,000.00 and US$250.00 for her ticket and

268 hotel accommodation. Victoria gave appellant the amount, and the latter issued corresponding receipts. She turned over the amount to the travel agency which, in turn, issued a receipt to appellant. The CIS, however, confiscated all the documents in her attache case. 26 Appellant was able to process Victoria's visa for Korea but when someone informed the latter that she could have a visa for Taiwan, Victoria opted to change her destination. Appellant told Victoria that her visa and ticket for Korea had already been obtained but Victoria insisted on a refund of her money. Appellant returned to her P15,000.00 that was supposed to be the amount to be exchanged into dollars for her "show money." Victoria issued a receipt for the amount but appellant entrusted it to her former lawyer. Appellant handed over the plane ticket to Victoria. 27 Mercedes Quimson (Kimson) introduced appellant to Adeline Tiangge. When Adeline said that she was interested in securing a tourist visa for Korea, appellant took her to the Dynasty Travel and Tours. Appellant asked from Adeline the amount of P17,000.00 for her plane ticket. Appellant was able to buy a plane ticket and to get a passport for Adeline. The latter, however, later said that she was no longer interested in going to Korea and that her passport application should, instead, be "diverted to Hongkong." In fact, Adeline was able to leave for Hongkong. Adeline filed a case against appellant because when Adeline sought a refund from Dynasty Travel and Tours, the agency only gave her P5,000.00 or just a half of the P10,000.00 she wanted. 28 Fidel Opdas was appellant's client at the Friendship Agency who was able to leave for Saudi Arabia. He asked her if she could find a job for him in Taiwan. When appellant told him that she knew someone who could help, Opdas brought along Mariano Damolog. Appellant introduced them to Marites Tapia and Carol Cornelio of Dynasty Travel and Tours who told Opdas and Damolog to submit the necessary documents for their application for work in Taiwan. In May 1993, Opdas returned with Brando Salbino who also talked to Marites and Carol. Opdas submitted to appellant the documents required by Marites and Carol. Appellant, in turn, gave the papers to Marites and Carol. When, later, Opdas went to see appellant, he brought along Dembert Leon and Lorenzo Belino. Appellant requested Opdas to accompany the two to Marites and Carol with whom they discussed what would be necessary "for their application for Taiwan." Still later when Opdas came back with Peter and Alfredo Arcega to see appellant, she again referred them to Marites and Carol. The job applicants each gave appellant P10,000.00 which the latter turned over to Marites and Carol. The two gave her receipts but these were in the same attache case that was seized by the CIS agents and never returned. The group subsequently withdrew their applications although it was only Opdas who received a P15,000.00 refund. 29 In a bid to prove that CIS agents indeed took away her attache case containing documents that could bail her out of the charges, appellant presented Danilo A. Deladia, one of the three policemen who arrested her. Equipped with a warrant of arrest issued by Judge Luis Dictado of Branch 8, the policemen went to the house of appellant's cousin at 2320-B San Antonio, Sampaloc, Manila at 3:00 p.m. of 25 August 1993. According to Deladia, however, they did not get anything from appellant because their mission was only to arrest her. At the counter intelligence branch of the CIS, he did not even hear appellant requesting for the return of a brief case. 30 Apparently because of what had turned out to be Deladia's adverse testimony, the defense presented George Santiago who claimed to be at the boarding house when appellant was arrested. Santiago said that he had allowed the CIS agents to enter the boarding house. Santiago did not see what might have happened in appellant's room but what he did see was that when the agents all came out, they had with them an attache case. Santiago, accompanied by his cousin Atty. Lomboan, went to the CIS in Camp Crame where one of the men

269 asked P50,000.00 for the release of appellant. Santiago did not see any brief case in the office but one of the men told them that they would "produce" appellant and the attache case if they could "produce" the amount of P50,000.00. 31 On cross-examination, however, Santiago admitted that the P50,000.00 was meant for "bonding purposes" and that they did not make a formal request for the release of the brief case. 32 The defense next attempted to shift, albeit unsuccessfully, the responsibility for the crime from appellant to Maritess and Carol. Presented at the witness stand was Oscar Gaoyen, a 30-year-old farmer, who testified that appellant had failed to assist him in going to Korea to work "because it was difficult." While following up his application in Manila, he met Marites and Carol in front of the Dangwa station in Dimasalang and he was told that they knew someone who could "transfer his application to Taiwan." He said that even after he had paid appellant P50,000.00, nothing happened constraining him to file charges against her. Appellant returned P15,000.00 of the money to him. 33 Appellant filed, before the trial court could promulgate its decision, a "Motion to Reopen Trial" with an urgent motion to defer promulgation on the ground of newly discovered evidence. 34 In its order of 03 March 1995, the trial court, noting that the "newly discovered evidence" consisted of affidavits of desistance of seven complainants, found no merit in the motion. It held that "presentation of the same does not give valid ground for possible amendment of the decision as the private complainants had already testified." It agreed with the prosecutor that "the affidavits of desistance only (had) the effect of satisfying the civil liability." 35 The Judgment of the Trial Court. prLL On 03 March 1995, the trial court rendered its decision finding appellant guilty beyond reasonable doubt of the crimes charged. It found implausible appellant's claim that she was merely an agent of Dynasty Travel and Tours and/or Maritess Tapia and Carol Cornelio. If what she claimed were true, said the court, appellant could have presented her principals; instead, that failure exposed her to the "adverse inference and legal presumption that evidence suppressed would be adverse if produced." It also found "hard to believe, "the "self-serving" claim of appellant that her brief case, supposedly containing receipts of her remittances to the travel agencies, was confiscated by the CIS and remained unaccounted for. The trial court concluded: "In fine, accused gave the distinct assurance, albeit false, that she had the ability to send the complainants abroad for work deployment, thereby employing false pretenses to defraud them. This was despite her knowing very well that she was not legally authorized. The complainants willingly parted with their money in the hope of overseas employment deceitfully promised them by the accused. What makes matters worse is that these amounts given to the accused come from hardearned money, or worse, could have been borrowed from money lenders who have no qualms about collecting usurious interest rates. Complainants who faithfully relied on the accused did not hesitate to painstakingly raise or even beg or borrow money just so they could give a decent future to their families even to the extent of leaving them for far-off lands. But now, all their dreams are gone, their hopes shattered. Some may not have even been able to pay back what they borrowed nor recoup their losses. Now, more than ever, their future appears bleaker. But this time, a glimmering light appears at the end of the tunnel as the Court steps in to lay down the iron fist of the law so as to serve the accused a lesson, a bitter one, with the hope that those who are trekking or those who are about to trek the same pilfered path that the accused took will reconsider their

270 pursuits before it would be too late, and in the end, this form of fraud which invariably victimizes the poor will forever be stopped." 36 All given, the trial court then decreed as follows: "WHEREFORE, in all the above-mentioned cases, the Court finds accused Antonine B. Saley, also known as Annie B. Saley, GUILTY beyond reasonable doubt of the corresponding crime as charged in the informations and hereby sentences her in each case, except in Criminal Case NO. 93-CR-1645 where an indeterminate sentence is not applicable, to suffer an indeterminate sentence for the duration hereunder given, and to pay the costs, as well as the damages due the private complainants, to wit: "Criminal Case No. 92 CR-1396 "Imprisonment from Four (4) Years as MINIMUM to Six (6) Years as MAXIMUM and to pay Francisco T. Labadchan P45,000.00 for actual damages, plus costs. "Criminal Case No. 92-CR-1397 "Imprisonment from Three (3) Years, Six (6) Months and Twenty-One (21) Days of prision correccional as MINIMUM to Seven (7) Years, Four (4) Months and One (1) Day of prision mayor as MAXIMUM and to pay Francisco T. Labadchan P45,000.00 for actual damages, plus costs. "Criminal Case No. 92-CR-1413 "Imprisonment from Four (4) Years as MINIMUM to Six (6) Years as MAXIMUM and to pay Cherry Pi-ay P20,000.00 for moral damages, plus costs. "Criminal Case No. 92-CR-1414 "Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21) Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months and Eleven (11) Days of prision correccional as MAXIMUM and to pay Victoria As-il P15,000.00 for actual damages, plus costs. "Criminal Case No. 92-CR-1415 "Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21) Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months and Eleven (11) Days of prision correccional as MAXIMUM and to pay Cherry Pi-ay P20,000.00 for moral damages, plus costs. "Criminal Case No. 92-CR-1416 "Imprisonment from Four (4) Years as MINIMUM to Six (6) Years as MAXIMUM and to pay Victoria As-il P15,000.00 for actual damages, plus costs. "Criminal Case No. 92-CR-1425 "Imprisonment from Four (4) Years as MINIMUM to Six (6) Years as MAXIMUM and to pay Corazon del Rosario P20,000.00 for moral damages, plus costs. "Criminal Case No. 92-CR-1426 "Imprisonment from One (1) Year, Seven (7) Months and Eleven (11) Days of prision correccional as MINIMUM to Six (6) Years, Five (5) Months and Eleven (11) Days of prision mayor as MAXIMUM and to pay Corazon del Rosario P20,000.00 for moral damages, plus costs. "Criminal Case No. 92-CR-1427

271 "Imprisonment from Four (4) Years as MINIMUM to Six (6) Years as MAXIMUM and to pay the costs. "Criminal Case No. 92-CR-1428 "Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21) Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months and Eleven (11) Days of prision correccional as MAXIMUM and to pay the costs. "Criminal Case No. 93-CR-1644 "Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21) Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months and Eleven (11) Days of prision correccional as MAXIMUM and to pay Alfredo C. Arcega P25,000.00 for actual damages, plus costs. "Criminal Case No. 93-CR-1645 "To suffer the penalty of life imprisonment and to pay a fine of One Hundred Thousand Pesos (P100,000.00), with subsidiary imprisonment in case of insolvency, and to pay the costs. She shall also pay Twenty-Five Thousand Pesos (P25,000.00) each to Peter Arcega, Lorenzo Belino, Mariano Damolog, Brando Salbino, Dembert Leon and Alfredo Arcega for actual damages, plus costs. "Criminal Case No. 93-CR-1646 "Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21) Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months and Eleven (11) Days of prision correccional as MAXIMUM and to pay Brando B. Salbino P25,000.00 for actual damages, plus costs. "Criminal Case No. 93-CR-1647 "Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21) Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months and Eleven (11) Days of prision correccional as MAXIMUM and to pay Mariano Damolog P25,000.00 for actual damages, plus costs. "Criminal Case No. 93-CR-1649 "Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21) Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months and Eleven (11) Days of prision correccional as MAXIMUM and to pay Lorenzo Belino P25,000.00 for actual damages, plus costs. "Criminal Case No. 93-CR-1651 "Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21) Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months and Eleven (11) Days of prision correccional as MAXIMUM and to pay Peter Arcega P25,000.00 for actual damages, plus costs. "Criminal Case No. 93-CR-1652 "Imprisonment from One (1) Year, Eight (8) Months and Twenty-One (21) Days of prision correccional as MINIMUM to Five (5) Years, Five (5) Months and Eleven (11) Days of prision correccional as MAXIMUM and to pay Adeline Tiangge y Marcos, P17,000.00 for actual damages, plus costs. "With respect to accused Conchita Tagle in Criminal Cases Nos. 92-CR-1396 and 92-CR-1397, let these cases be sent to the files without prejudice to their revival as soon as she shall have been arrested and brought to the jurisdiction of this Court.

272 "In order that Conchita Tagle may not escape the clutches of the law, let Alias Warrants of Arrest issue addressed to the PNP Chief of Police, La Trinidad, Benguet and the National Bureau of Investigation (NBI) in Manila and in Baguio City. Further, the Commission of Immigration and Deportation (CID), Manila is ordered to include her name in the its Hold-Departure List. "SO ORDERED." 37 Appellant filed a motion for reconsideration of the decision asserting that the trial court had erred in giving credence to the testimonies of the complaining witnesses and in finding her guilty of the crimes charged despite the "failure" of the prosecution to fully establish the elements of the crimes beyond reasonable doubt. 38 Finding no merit in the motion, the trial court, on 03 April 1995, denied a reconsideration of its decision. 39 The following day, appellant filed a notice of appeal. 40 The trial court gave due course to the appeal on 17 April 1995. 41 The Instant Appeal. Appellant continues to profess before this Court her innocence of the accusation. She reiterates her assertion that the trial court has erred in giving credence to the testimonies of the complaining witnesses and in finding her guilty beyond reasonable doubt of the various offenses she has been charged with by the prosecution. 42 She avers that her transactions with the complainants have been "limited to her assisting them secure their respective travel visa specifically for tourist" and that "her assistance to them (has been) only to refer them to travel agencies" such as the Dynasty Travel and Tours and the Mannings International. She insists that she has remitted the amounts solicited from the complainants to the travel agencies, or to Maritess Tapia and Carol Cornelio, earning only the commissions "for bringing in clients interested in getting tourist visas." 43 At the outset, it might be explained that this appeal involves the conviction of appellant not only for the crime of illegal recruitment in large scale for which the penalty of life imprisonment is imposed but also for other offenses for which lesser penalties have been meted by the trial court upon appellant. This Court has appellate jurisdiction over ordinary appeals in criminal cases directly from the Regional Trial Courts when the penalty imposed is reclusion perpetua or higher. 44 The Rules of Court, allows, however, the appeal of criminal cases involving penalties lower than reclusion perpetue or life imprisonment under the circumstances stated in Section 3, Rule 122, of the Revised Rules of Criminal Procedure. Thus "(c) The appeal to the Supreme Court in cases where the penalty imposed is life imprisonment, or where a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed shall be by filing a notice of appeal in accordance with paragraph (a) of this Section." In giving due course to the notice of appeal filed by appellant, the trial court has directed that the "entire records of the seventeen cases" should be forwarded to this Court. 45 It might be observed that this appeal, which has been assigned only one docket number, involves cases, although spawned under different circumstances could be said to somehow be linked to the incident giving rise to the case for illegal recruitment in large scale. The cases have thus been correctly consolidated and heard jointly below. The appeal made directly to this Court of the seventeen cases, each of which incidentally should have been assigned a separate docket number in this Court, is properly taken.

273 Article 38(a) of the Labor Code considers illegal any recruitment activity "undertaken by non-licensees or non-holders of authority." Recruitment is defined by Article 13, paragraph (b), of the same Code as referring ". . . to any act of canvassing, enlisting, contracting, transporting; utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not; Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placements." Illegal recruitment is committed when two elements concur: 1) That the offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of worker; and 2) That the offender undertakes either any activity within the meaning of recruitment and placement defined under Article 13(b), or any prohibited practices enumerated under Article 34. 46 Any person who commits the prohibited acts enumerated in Article 13(b) of the Labor Code shall be liable under Article 38(a) thereof. 47 The proviso in Article 13(b) "lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement." 48 The article also provides that recruitment includes the act of referral or "the act of passing along or forwarding of an applicant for employment after an initial interview of a selected applicant for employment to a selected employer, placement officer or bureau." 49 The Court agrees with the trial court that appellant, indeed, violated the law against illegal recruitment. The prosecution was able to prove by overwhelming evidence that appellant did represent herself as being in a position to get for the aspiring overseas contract workers good-paying jobs abroad. Appellant was thus able to demand and receive various amounts from the applicants. The latter would then be briefed by appellant on the requirements for employment overseas. Appellant herself testified, thus: "Q From 1986 when separated from Friendship Recruitment Agency and before you were put to jail did you have any occupation? "A Yes, sometimes we brought vegetables and flowers to Manila for resale. "Q Aside from buying and selling vegetables down in Manila did you have any other source of income? "A Sometimes I helped some applicants who are interested to go abroad and asked if I know some agencies who can assist them to go abroad. "Q Were you able to assist some people to look for an agency to assist them to go abroad? "A Yes, sir. "Q Were you being paid when you assist these people applying for overseas employment? "A Yes, sir. "Q By whom? "A The travel agencies give me some amount of commission. "Q What are the names of these agencies which you know? "A Dynasty Travel and Tours and Mannings International. "xxx xxx xxx

274 "Q Do you know also if this Dynasty Travel and Tours and Mannings International is duly licensed by the government to recruit applicants abroad? "A Yes, sir. "Q Do you have any document to prove that it is registered? "A Yes, sir. "Q Where is that? "A Mannings International is a licensed agency and Dynasty Travel and Tours is licensed to issue tickets for applicants to go abroad. "Q You said that Dynasty Travel and Tours is licensed to issue tickets for applicants going abroad what do you mean by applicants going abroad? "A Those applicants to work as a contract worker and who are ready to leave for abroad and they are being issued tickets. "Q Were you actually able to help or assist some overseas worker-applicants? "A Yes, sir. "Q Do you remember some of them? "A Cherry Piay, Corazon del Rosario, Arthur Juan, Francisco Labadchan and others." (Emphasis supplied.) 50 Appellant at one point claimed that she had helped complainants only in acquiring for them plane tickets and tourist visas. On cross-examination, however, she admitted that she had made referrals of job applicants to recruitment agencies. 51 She evidently knew all along that the persons she was dealing with were applicants for employment abroad. The law requires that the above activities of appellant should have first been authorized by the POEA. 52 Rule II, Book II, of the POEA Rules and Regulations Governing Overseas Employment provides: "SEC. 11. Appointment of Representatives. Every appointment of representatives or agents of licensed agency shall be subject to prior approval or authority of the Administration. "The approval may be issued upon submission of or compliance with the following requirements: "a. Proposed appointment or special power of attorney; "b. Clearances of the proposed representative or agent from NBI; c. A sworn or verified statement by the designating or appointing person or company assuming full responsibility for all acts of the agent or representative done in connection with the recruitment and placement of workers. "Approval by the Administration of the appointment or designation does not authorize the agent or representative to establish a branch or extension office of the licensed agency represented. "Any revocation or amendment in the appointment should be communicated to the Administration. Otherwise, the designation or appointment shall be deemed as not revoked or amended." The claim that appellant did not categorically represent herself as a licensed recruiter, or that she merely helped the complainants secure "tourist visas," could not make her less guilty of illegal recruitment, 53 it being enough that he or she gave the impression of having had the authority to recruit workers for deployment abroad. 54 The fact that, with the exception of the cases involving Cherry Pi-ay and Corazon del Rosario, only the complainant in each of the cases, have testified against

275 appellant in the illegal recruitment cases does not thereby make the case for the prosecution weak. The rule has always been that the testimony of witnesses is to be weighed, not that the witnesses be numbered, and it is not an uncommon experience to have a conclusion of guilt reached on the basis of the testimony of a single witness. 55 Corroborative evidence is necessary only when there are reasons to warrant the suspicion that the witness has perjured himself or that his observations have veered from the truth. 56 The absence of receipts to evidence payment to an indictee in a criminal case for illegal recruitment does not warrant an acquittal of the accused, and it is not necessarily fatal to the prosecution's cause. As long as the prosecution is able to establish through credible testimonial evidence that the accused has involved himself in an act of illegal recruitment, a conviction for the offense can very well be justified. 57 Altogether, the evidence against appellant has established beyond any discernible shadow of doubt that appellant is indeed guilty of illegal recruitment on various counts. Being neither a licensee nor a holder of authority to recruit, appellant must suffer under Article 39(c) of the Labor Code the penalty of imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000.00 nor more than P100,000.00 or both such imprisonment and fine, at the discretion of the court. In imposing the penalty, the provisions of the Revised Penal Code on the application of the circumstances that could modify the criminal liability of an accused cannot be considered, these provisions being inapplicable to special laws. Under the Indeterminate Sentence Law, 59 whenever the offense is punishable by a special law, the court shall impose on the accused an indeterminate sentence, "the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." 60 Accordingly, in imposing the penalty of four (4) years to six (6) years on appellant for each of the five cases of illegal recruitment, the trial court has acted correctly. Illegal recruitment is committed in large scale if it is perpetrated against three or more persons "individually or as a group." Its requisites are that: (1) the person charged with the crime must have undertaken recruitment activities as so defined by law, (2) the same person does not have a license or authority to do that, and (3) the questioned act is committed against three or more persons. 61 The prosecution has been able to successfully show that, for a fee, appellant, not being authorized to recruit workers for abroad, did so in Criminal Case No. 93-CR-1645 against seven complainants. For this offense, Article 39(a) of the Labor Code imposes the penalty of life imprisonment and a fine of one hundred thousand pesos (P100,000.00). This penalty was thus likewise aptly meted out upon appellant by the trial court. Conviction for these various offenses under the Labor Code does not bar the punishment of the offender for estafa. Illegal recruitment is a malum prohibitum offense where criminal intent of the accused is not necessary for conviction while estafa is malum in se which requires criminal intent to warrant conviction. 62 Under Article 315, paragraph 2(a), 63 of the Revised Penal Code, the elements of the offense (estafa) are that (1) the accused has defrauded another by abuse of confidence or by means of deceit and (2) damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. 64 Clearly, these elements have sufficiently been shown in the cases under review. The penalty for the crime is prescribed by Article 315, first to fourth paragraphs, of the Revised Penal Code as follows:

276

"1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. "2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos; "3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period if such amount is over 200 pesos but does not exceed 6,000 pesos; and "4th. By arresto mayor in its maximum period, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means: . . ." In the case of People vs. Gabres, 65 the Court has had occasion to so state that "Under the Indeterminate Sentence Law, the maximum term of the penalty shall be 'that which, in view of the attending circumstances, could be properly imposed' under the Revised Penal Code, and the minimum shall be within the range of the penalty next lower to that prescribed' for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. "The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months . . ." 66 The Court reiterates the above rule; however, in fixing the maximum term, the prescribed penalty of prision correccional maximum period to prision mayor minimum period should be divided into "three equal portions of time," each of which portion shall be deemed to form one period; hence Minimum Period Medium Period Maximum Period From 4 years, 2 months From 5 years, 5 months From 6 years, months and 1 day to 5 years, and 11 days to 6 years, and 21 days to 8 years 8

277 5 months and 10 days 8 months and 20 days in consonance with Article 65, 67 in relation to Article 64, 68 of the Revised Penal Code. When the amount involved in the offense exceeds P22,000.00, the penalty prescribed in Article 315 of the Code "shall be imposed in its maximum period," adding one year for each additional P10,000.00 although the total penalty which may be imposed shall not exceed 20 years. The maximum penalty should then be termed as prision mayor or reclusion temporal as the case may be. In fine, the one year period, whenever applicable, shall be added to the maximum period of the principal penalty of anywhere from 6 years, 8 months and 21 days to 8 years. Accordingly, with respect to the cases of estafa filed by the complainants who individually charged appellant with illegal recruitment, the applicable penalties would, respectively, be, as follows: In Criminal Case No. 92-CR-1397 where appellant defrauded Francisco T. Labadchan in the amount of P45,000.00, two years for the additional amount of P23,000.00 in excess of P22,000.00 provided for in Article 315 shall be added to the maximum period of the prescribed penalty of prision correccional maximum to prision mayor minimum (or added to anywhere from 6 years, 8 months and 21 days to 8 years). As such, aside from paying Labadchan the amount of P45,000.00 by way of actual damages, the Court deems it proper to sentence appellant to the indeterminate penalty of three (3) years, six (6) months and twenty-one (21) days of prision correccional medium to eight (8) years, eight (8) months and twentyone (21) days of prision mayor medium. In Criminal Case No. 92-CR-1414, appellant defrauded Victoria Asil in the amount of P15,000.00. Hence, aside from paying Victoria Asil the amount of P15,000.00 by way of actual damages, appellant shall also suffer the indeterminate penalty of one (1) year, eight (8) months and twenty-one (21) days of prision correccional medium to five (5) years, five (5) months and eleven (11) days of prision correccional maximum. In Criminal Case No. 92-CR-1415 where appellant defrauded Cherry Pi-ay in the amount of P18,000.00, appellant, besides paying Cherry Pi-ay that amount by way of actual damages, shall also suffer the indeterminate penalty of one (1) year, eight (8) months and twenty-one (21) days of prision correccional minimum to five (5) years, five (5) months and eleven (11) days of prision correccional maximum. In Criminal Case No. 92-CR-1426 where appellant defrauded Corazon del Rosario in the amount of P40,000.00, appellant shall suffer the indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional medium to seven (7) years, eight (8) months and twenty-one (21) days of prision mayor minimum. In Criminal Case No. 92-CR-1428 where appellant fraudulently solicited the amount of P24,200.00 from Arthur Juan, appellant shall pay him actual damages in that amount and shall suffer the indeterminate penalty of from one (1) year, eight (8) months and twenty-one (21) days (imposed by the court a quo) of prision correccional minimum period to six (6) years, eight (8) months and twenty-one (21) days of prision mayor minimum. In Criminal Case No. 92-CR-1652 where appellant defrauded Adeline Tiangge the amount of P18,500.00, appellant shall pay her the same amount as actual damages and shall suffer the indeterminate penalty of from one (1) year, eight (8)

278 months and twenty-one (21) days of prision correccional minimum to five (5) years, five (5) months and eleven (11) days of prision correccional maximum. In Criminal Case No. 93-CR-1645, the prosecution has successfully established its case against appellant for illegal recruitment in large scale. Evidently banking on her reputation in the community as a job recruiter, appellant was able to make the seven complainants believe that they could land various jobs in Taiwan. Confident of her assurances, each complainant parted with P25,000.00 for supposed processing and placement fees. It would appear that of the seven complainants for illegal recruitment in large scale, only five 69 of them filed separate charges of estafa against appellant. Accordingly, appellant was only and could only be held liable for five counts of estafa arising from the charge of illegal recruitment in large scale. Since appellant collected the amount of P25,000.00 from each of the five (5) victims, she must be held subject to the penalty in its maximum period or prision mayor in its minimum period (not any higher on account of the fact that the amount in excess of P22,000.00 provided for by Article 315 of the Revised Penal Code is less than P10,000.00). 70 Applying the Indeterminate Sentence Law, and there being no attending circumstances, appellant shall bear, the indeterminate penalty of one (1) year, eight (8) months and twenty-one (21) days of prision correccional medium as minimum penalty to six (6) years, eight (8) months and twenty-one (21) days of prision mayor minimum as maximum penalty for each offense. In addition, appellant should pay the five (5) victims the amount of P25,000.00 each as actual damages. The actual damages awarded here shall be subject to diminution or cancellation should it be shown that appellant had already paid the complainants. WHEREFORE, the Decision finding appellant guilty beyond reasonable doubt of the crimes of illegal recruitment, illegal recruitment in large scale and estafa is hereby AFFIRMED subject to the modifications hereunder specified, and only to the extent thereof, in the following cases: 1) In Criminal Case No. 92-CR-1397, accused-appellant is sentenced to an indeterminate penalty of imprisonment of from three (3) years, six (6) months and twenty-one (21) days of prision correccional medium period as MINIMUM, to eight (8) years, eight (8) months and twenty-one (21) days of prision mayor medium period as MAXIMUM and to pay Francisco T. Labadchan the amount of P45,000.00 by way of actual damages. 2) In Criminal Case No. 92-CR-1414, accused-appellant is sentenced to an indeterminate penalty of from one (1) year, eight (8) months and twenty-one (21) days of prision correccional minimum period as MINIMUM, to five (5) years, five (5) months and eleven (11) days of prision correccional maximum period as MAXIMUM and to pay Victoria Asil the amount of P15,000.00 by way of actual damages. 3) In Criminal Case No. 92-CR-1415, accused-appellant is sentenced to an indeterminate penalty of from one (1) year, eight (8) months and twenty-one (21) days of prision correccional minimum period as MINIMUM, to five (5) years, five (5) months and eleven (11) days of prision correccional maximum period as MAXIMUM. 4) In Criminal Case No. 92-CR-1426, accused-appellant is sentenced to an indeterminate penalty of imprisonment of from two (2) years, four (4) months and one (1) day of prision correccional medium period as MINIMUM, to seven (7)

279 years, eight (8) months and twenty-one (21) days of prision mayor minimum period as MAXIMUM. 5) In Criminal Case No. 92-CR-1428, accused-appellant is sentenced to an indeterminate penalty of from one (1) year, eight (8) months and twenty-one (21) days of prision correccional minimum period as MINIMUM, to six (6) years, eight (8) months and twenty-one (21) days of prision mayor minimum period as MAXIMUM. 6) In Criminal Case No. 93-CR-1644, accused-appellant is sentenced to an indeterminate penalty of from one (1) year, eight (8) months and twenty-one (21) days of prision correccional minimum period as MINIMUM, to six (6) years, eight (8) months and twenty-one (21) days of prision mayor minimum period as MAXIMUM and to pay Alfredo Arcega the amount of P25,000.00 by way of actual damages. 7) In Criminal Case No. 93-CR-1646, accused-appellant is sentenced to an indeterminate penalty of from one (1) year, eight (8) months and twenty-one (21) days of prision correccional minimum period as MINIMUM, to six (6) years, eight (8) months and twenty-one (21) days of prision mayor minimum period as MAXIMUM and to pay Brando Salbino the amount of P25,000.00 by way of actual damages. 8) In Criminal Case No. 93-CR-1647, accused-appellant is sentenced to an indeterminate penalty of from one (1) year, eight (8) months and twenty-one (21) days of prision correccional minimum period as MINIMUM, to six (6) years, eight (8) months and twenty (21) days of prision mayor minimum period as MAXIMUM and to pay Mariano Damolog the amount of P25,000.00 by way of actual damages. 9) In Criminal Case No. 93-CR-1649, accused-appellant is sentenced to an indeterminate penalty of from one (1) year, eight (8) months and twenty one (21) days of prision correccional minimum period as MINIMUM, to six (6) years, eight (8) months and twenty-one (21) days of prision mayor minimum period as MAXIMUM and to pay Lorenzo Belino the amount of P25,000.00 by way of actual damages. 10) In Criminal Case No. 93-CR-1651, accused-appellant is sentenced to an indeterminate penalty of from one (1) year, eight (8) months and twenty-one (21) days of prision correccional minimum period as MINIMUM, to six (6) years, eight (8) months and twenty-one (21) days of prision mayor minimum period as MAXIMUM and to pay Peter Arcega the amount of P25,000.00 by way of actual damages. 11) In Criminal Case No. 92-CR-1652, accused-appellant is sentenced to an indeterminate penalty of from one (1) year, eight (8) months and twenty-one (21) days of prision correccional minimum period as MINIMUM, to five (5) years, five (5) months and eleven (11) days of prision correccional maximum period as MAXIMUM and to pay Adeline Tiangge the amount of P17,000.00 by way of actual damages. The awards of damages in Criminal Cases No. 92-CR-1396, No. 92-CR-1413, No. 92-CR-1416, No. 92-CR-1425, and No. 92-CR-1427, all for illegal recruitment, as well as No. 93-CR-1645 for illegal recruitment in large scale, except for the award of P25,000.00 by way of actual damages to Dember Leon (no estafa case having been instituted), are DELETED, either because similar

280 awards have already been provided for by the trial court, or for insufficiency of proof, in the estafa cases aforenumbered. Costs against accused-appellant. LLpr SO ORDERED.

[G.R. No. 118806. July 10, 1998.] SANTIAGO ARGONCILLO, RICHARDO BALBONA and POLICARPIO UMITEN, petitioner, vs. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. DECISION This is a petition to review the decision 1 of the Court of Appeals which affirmed in toto the decision of the Regional Trial Court of Roxas City, Branch 15, 2 finding petitioners herein guilty of "illegal fishing with the use of an explosive," the dispositive portion of which reads: LexLib WHEREFORE, the Court finds the accused, Policarpio Umiten, Santiago Argoncillo and Richard Balbona, guilty beyond reasonable doubt for the crime of illegal fishing with the use of an explosive punishable under Section 33 in relation to Section 38 of Presidential Decree No. 704 dated May 16, 1975 as amended by Presidential Decree No. 1058 dated December 1, 1976 and each shall suffer a straight penalty of twenty (20) years imprisonment. However, accused, Johnson Sucgang, Elvis Villar and Efren Alvaro, are acquitted for failure of the prosecution to prove their guilt beyond reasonable doubt. The fish sample is forfeited in favor of the government. Considering the penalty imposed upon the accused, Policarpio Umiten, Santiago Argoncillo and Richard Balbona, the bail bond for their provisional liberty is increased to Twenty Thousand (P20,000.00) Pesos each effective immediately upon promulgation. They shall not be released from detention until they put up an appropriate bail bond for their provisional liberty. The property bond of accused, Johnson Sucgang, Elvis Villar and Efren Alvaro, are deemed cancelled. Costs against the convicted accused. SO ORDERED. 3 On August 1, 1990, an Information was filed by the Provincial Fiscal of Capiz charging Johnson Sucgang, Policarpio Umiten, Elvis Villar, Santiago Argoncillo, Richardo Balbona and Efren Alvaro with illegal fishing (with the use of dynamite), as follows: cdtai That at or about 6:30 o'clock [sic] in the evening of May 7, 1990, in the sea water of Barangay Basiao, Ivisan, Capiz, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another, willfully, unlawfully and feloniously catch, take, gather and have in their possession and control different species of fish with the use of explosives. 4 Upon arraignment on September 11, 1990, the accused, with the assistance of counsel, pleaded "not guilty" to the offense charged. Trial ensued thereafter. The lower court synthesized the evidence presented by the prosecution as follows: Due to reports of rampant illegal fishing at Barangay Basiao, Ivisan, Capiz, personnel from the Department of Agriculture and Natural Resources specifically

281 from the Bureau of Fisheries as well as the Barangay Captain of said place assisted by the local policemen created a team to conduct surveillance within the Ivisan Bay. Thus, around 5:30 in the afternoon of May 7, 1990, a team riding in two (2) pumpboats from the Barangay Basiao wharf proceeded along the waters of Ivisan Bay. Riding in one pumpboat were Persinefles U. Oabe, the Barangay Captain of said place; Rolando Amoroso, an employee of the Bureau of Fisheries; Pat. Rafael Tupaz, a member of the local Integrated National Police and Remegio Unasin, a barangay councilman who acted as the pilot. In the other pumpboat were Joey de la Cruz, a co-employee of Rolando Amoroso; Pat. Reggie Uadan and Enido Baldesimo. Now and then, the team had to stop and listen for possible occurrences of illegal fishing within their vicinity. Around 6:30 of the same evening while standing by with their engines off, in a place facing Barangay Culasi, they heard an explosion. Sensing it was caused by dynamite, they proceeded to the area around five hundred meters (500 m.) away from them. After ten minutes of navigation, the team arrived at the scene in question which was near an islet. They surrounded the area. At a distance of around ten meters, Joey de la Cruz, an employee of the Bureau of Fisheries and Aquatic Resources, saw three persons diving into the water. Thereafter, they would surface and throw their catch of fish to the unmotorized banca around four meters long nearby. In the seashore of said islet, around three to four meters away from these three persons float in the water, were three other persons standing in the rocky portions around three meters apart. These six persons tried to escape but Rolando Amoroso, the co-employee of Joey de la Cruz, advised them not to do so and introduced themselves as law enforcers. The team found out that the fishes they caught were deep sea fish of four kinds locally known as "vulgan," "bulawis," "pacol," and "bag-angan." Joey de la Cruz gathered seven fish samples from their banca while Rolando Amoroso went down from the pumpboat and proceeded to the islet. However, upon inspection, he failed to find any explosive (dynamite) either on the seashore or on the banca. No paraphernalia used in dynamite fishing were found. Both Joey de la Cruz and Rolando Amoroso recognized the six persons as the herein accused by their faces. Persinefles U. Oabe, barangay captain of Barangay Basiao, who was with the team riding in a pumpboat with Rolando Amoroso identified the three persons retrieving fish from the water as Policarpio Umiten, Santiago Argoncillo and Richard Balbona while the other three persons standing on the rocky portions of the islet as Johnson Sucgang, Elvis Umiten and Efren Alvaro. The team apprehended the six accused and brought them to the fish cage of the barangay captain located within the same barangay. While on their way, Joey de la Cruz externally examined the fish samples. Upon their arrival at the fish cage, another external examination was conducted by Joey de la Cruz and Rolando Amoroso. In both external examinations, the two found out that the fishes were caught with the use of explosives because blood was oozing from their operculums and their eyes were protruding. An on-the-spot investigation was conducted but the accused denied any culpability. They were then released on the strength of their promise to report to the local police the following day. The fish samples were then placed in a plastic bag filled with ice at the house of Barangay Captain Persinefles U. Oabe that evening. In the morning, Joey de la Cruz and Rolando Amoroso brought the fish samples to their office in Roxas City where they conducted an internal examination. The examination revealed that the fish samples were caught with the use of explosives because their air bladders

282 were raptured and deeply stained with blood; the vertebral columns were broken but with bloodstains; their ribs were broken; and there were blood clots in their abdomens. Joey de la Cruz and Rolando Amoroso rendered a written report of their internal examination to the Provincial Agricultural Officer. The testimonies of Joey de la Cruz, Rolando Amoroso, and Persinefles U. Oabe above were corroborated by Pat. Rafael Tupaz, one of the police escorts of the team. Sgt. Sergio Ordales, a member of the local police of the municipality of Ivisan testified that while on duty in the morning of May 8, 1990, herein six accused arrived at their station. He asked why they were there and they answered that they were told to report to the police station. He learned from them that they were arrested for illegal fishing with the use of explosives. On the other hand, the lower court portrayed the evidence presented by the version of the defense, thus: All the accused denied the imputation of the prosecution. Policarpio Umiten, Santiago Argoncillo, Richard O. Balbona were uniform in alleging that around 4:00 in the afternoon of May 7, 1990, they dropped a fishnet about two hundred (200) 'armslength' and one (1) meter in width at the scene where they were apprehended. This method they locally call "patuloy" requires that the fishnet be retrieved every hour to collect its catch. The trio went back to the place near the islet in question around 6:30 in the evening for the purpose of collecting their catch from the fishnet. They had not been able to collect all their catch from the net when the team of law enforcers, prosecution witnesses herein, arrived. They were asked whether they heard an explosion. After they denied having heard any, Barangay Captain Persinefles U. Oabe, told the accused to go with them. The team got seven pieces of fish samples. The accused left around one and one-half kilos of fish they had gathered at the time the team of law enforcers arrived. They were then brought to the fish cage owned by Persinefles U. Oabe at Barangay Basiao. Above three accused would like the Court to believe that the seven pieces of fish samples taken by the team of fishing law enforcers were the catch of their fishnet they locally called "patuloy." On the other hand, Elvis Villar testified that he and Efren Alvaro were together in going to the islet in question, riding in an unmotorized banca to gather shells locally called "suso" and "butlogan" for viand. Both started gathering shells under the stones in the islet around 5:30 in the afternoon. While they were preparing to go home at around 6:30 in the evening, the team of law enforcers riding in motorized pumpboats arrived. The barangay captain and the personnel from the Bureau of Fisheries and Aquatic Resources asked them whether they heard an explosion. After they denied having heard any, they were told by the barangay captain to board their pumpboats. They obliged, leaving the shells they had gathered. They were then brought to the fish cage of the barangay captain. Although accused Johnson Sucgang admitted his presence in the islet in question, he offered a different explanation. He testified that he went to said place to look for "Pulutan" requested by his customer, Wilfredo Arcangeles. Being an operator and manager of Virgen Beach Resort located at Sitio Manangkalan, he obliged. Thus, between 5:00 to 5:30 in the afternoon of May 7, 1990, he left his resort riding in a banca. He paddled his way towards the islet where he saw two persons at the bank while the other three were on the water. He went ashore. Later, the

283 barangay captain and his companions riding in two pumpboats arrived. Like his co-accused, he was asked if he heard an explosion. After he denied hearing any, the barangay captain told him to go with them. They were all brought to the fish cage of the barangay captain for questioning. Wilfredo Arcangeles corroborated the claim of Johnson Sucgang. He confirmed that he requested the latter to look for "pulutan" since he had visitors from Bacolod City prompting Johnson Sucgang to look for some. He saw the accused leave in a banca and affirmed that he had no dynamite with him. 6 On September 30, 1991, the trial court rendered its decision which, as stated at the beginning, was affirmed by the Court of Appeals. Hence, this petition. Petitioners point out that the fact that neither explosives nor related paraphernalia were found in their possession is an indication of their innocence. We do not agree. First, it is quite probable that petitioners dumped these materials into the sea while the raiding party was approaching. Moreover, Section 33, Presidential Decree No. 704, as amended by Presidential Decree No. 1058, provides: Sec. 33. Illegal fishing; . . . It shall be unlawful for any person to catch, take or gather, or cause to be caught, taken or gathered fish or fishery/aquatic products in Philippine waters with the use of explosives, obnoxious or poisonous substance, or by the use of electricity as defined in paragraphs (l), 7 (m) 8 and (d), 9 respectively, of Sec. 3 hereof . . . xxx xxx xxx The discovery of dynamite, other explosives and chemical compounds containing combustible elements, or obnoxious or poisonous substance, or equipment or device for electric fishing in any fishing boat or in the possession of a fisherman shall constitute a presumption that the same were used for fishing in violation of this Decree, the discovery in any fishing boat of fish caught or killed by the use of explosives, obnoxious or poisonous substance or by electricity shall constitute a presumption that the owner, operator or fisherman were fishing with the use of explosives, obnoxious or poisonous substance or electricity. LexLib In Hizon vs. Court of Appeals, 10 this Court held that the law, as contained in the last paragraph of Section 33, creates a presumption that illegal fishing has been committed when fish caught or killed with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing boat. In this case, it cannot be denied that the fishes found in petitioners' banca were caught or killed by the use of explosives. The Report 11 of Bureau of Fisheries employees Joey de la Cruz and Rolando Amoroso states: Republic of the Philippines Department of Agriculture Roxas City 1990-05-08 The Provincial Agricultural Officer Department of Agriculture Roxas City Sir:

284 I have the honor to submit to this office the result of the scientific fish examination conducted on the fish samples taken from the possession of Mr. Johnson Umiten Sucgang, 38 years old, married and resident of Barangay Basiao, Ivisan, Capiz and company on May 7, 1990, 6:30 PM by combined elements of the Department of Agriculture, PC/INP Unit of Ivisan, Capiz and Barangay officials, of Basiao, Ivisan, Capiz conducting sea borne patrol on illegal fishing. Source of fish samples Sea water of Brgy., Basiao, Ivisan, Capiz Fish samples taken from Johnson U. Sucgang, 38 years old, married, of Brgy., Basiao, Ivisan, Capiz, et. al. Date fish samples taken May 7, 1990 at 6:30 PM Date fish samples examined May 7, 1990 at 7:00 PM Name of fish samples taken Number WeightValue Local Name Bulawis 2 pcs. 300 gms P8.00 Bulgan 2 pcs. 200 gms 10.00 Pakol 1 pc. 100 gms 2.00 Bag-angan 1 pc. 150 gms 3.00 Bukod 1 pc. 150 gms 3.00 Characteristics noted on the fish examined: 1. External Manifestation a. Blood, oozing on the operculum. 2. Internal Manifestation a. Air bladder raptured deeply stained with blood; b. Vertebral column broken with blood stain. Conclusion: The fish samples manifested signs that said fish were caught or killed by the use of explosives. Examined by: (Sgd.) JOEY I. DE LA CRUZ (Sgd.) ROLANDO E. AMOROSO Fish Examiners Joey de la Cruz affirmed the above findings in his testimony before the trial court. 12 Said testimony was corroborated by Rolando Amoroso, a co-employee of De la Cruz in the Bureau of Fisheries. The latter further stated that the fish were killed specifically by dynamite: ATTY. LUMAWAG: Q Can you identify whether it was through dynamite or any other means of explosive the fish was caught? A Yes, sir. Because you know when we saw, when we conducted the external manifestation of the fish not only blood oozing from the ears but also from the eyes that were protruding. Q Is it not possible that it be caused also through fishing by means of electricity? A No. O Other kinds of explosives? A Yes, explosives. Q For example, what other aside from dynamite? A What explosives aside from dynamite, no other. 13 The trial court correctly gave credence to these testimonies, thus:

285 Above three (3) accused would like the Court to believe that the seven (7) pieces of fish samples taken by the team of fishing law enforcers were the catch of their fish net they locally called [sic] "patuloy." xxx xxx xxx With the external and internal examination by Joey de la Cruz and Rolando Amoroso showing that these fishes were caught with the use of explosive, bare denial of above three (3) accused that they caught them by means of a fishing net they locally call "patuloy" is insufficient to disprove such finding. It is simply a superiority of weight of object evidence over testimonies of the accused. Joey de la Cruz is an agricultural technologist of their office and a graduate of Bachelor of Science in Fishery. Joey de la Cruz and Rolando Amoroso had undergone training course in fishery laws and implementing regulations as well as actual demonstrations in sea to practice what they had learned in theory. [As] . . . technical personnel of the Bureau of Fishery and Aquatic Resources, their finding after an internal and external examination of fish samples to prove they were caught with the use of explosives should be presented to show that these prosecution witnesses fabricated their story. There is no ulterior motive which implied them to testify as they did. Furthermore, no evidence was introduced by the defense to impeach their credibility nor evidence to discredit their persons. Credibility of the testimonies having remained unimpeached, it shall be given great weight in the determination of the guilt of the accused. Besides, being public officers to enforce fishing laws, in the absence of ill-motive on their part, to impute to the accused a serious offense of illegal fishing with the use of explosive, the presumption is that there was regular performance of public duty on their part. 14 The presumption that the crime of illegal fishing was committed has, therefore, been clearly established. Such presumption, however, is merely prima facie, and may be rebutted by the accused. 15 Petitioners attempt to overcome said presumption by disputing the findings of prosecution witnesses Joey de la Cruz and Rolando Amoroso. They claim that since not all their catch were examined, there can be no conclusive proof that the fish were killed with the use of explosives. 16 They also question the credibility of these witnesses, thus: . . . If it is true that prosecution witness Joey de la Cruz, allegedly a technical personnel [sic] of the Bureau of Fisheries and competent to determine if a fish is killed by dynamite blast, found the 7 fishes to have been killed by a dynamite blast, it was unnatural for the team not to arrest the petitioners on the spot. . . . 17 Petitioners' arguments have no merit. It is ridiculous to have expected that all the fish found in the accused's fishing boat would be subjected to an examination. It is sufficient that, as in the case at bar, a random sample of the accused's catch was examined and found to have been killed with the use of explosives. A patent impracticality would result if the law required otherwise. The fact that the patrol team did not immediately deliver the accused to the municipal jail does not diminish the credibility of the above witnesses. Persinefles U. Oabe, the barangay captain of Basiao, gave a plausible explanation for the accused's release:

286 A We released those six persons because if we bring them to the municipality of Ivisan we have no available transportation because they were only riding in a single motor vehicle. 18 The want of available transportation is not surprising. The dearth in law enforcement facilities; especially in the provinces, is not lost on this Court and is a matter of judicial notice. In fine, we find no reason to disturb the assessment of the trial court regarding the credibility of prosecution witnesses Joey de la Cruz and Rolando Amoroso. Its findings are accorded great respect by appellate tribunals since trial courts have the advantage of examining the witnesses' testimonies and observing their demeanor first hand. 19 Petitioners also argue that they could not have been caught fishing with the use of dynamite in shallow waters because the fishes used as evidence were described by the prosecution witnesses as "deep sea fishes." According to petitioners: The seven (7) fishes that the prosecution used as evidence were described by prosecution witnesses as 'deep sea fishes'. But it has been shown in the testimony of petitioner Santiago Argoncillo that he and the other petitioners were fishing in shallow waters about 1 meters deep (TSN, March 13, 1991, p. 7) and using fishnet 200 armslength long and 1 meter wide (TSN, March 13, 1991, p. 4). This testimony was not rebutted by the prosecution. In fact, the 3 accused who were acquitted by the trial court were found by the prosecution witnesses standing on the seashore near where the petitioners were fishing (TSN, January 23, 1991, pp. 5 to 6). That petitioners would engage in dynamite fishing in shallow waters and near the seashore would be unnatural. The allegation that the petitioners were fishing with the use of explosive is therefore not credible. 20 We are not persuaded. The fishes caught by petitioners were not actually "deep sea fishes" in the sense that they came from the deep portions of the sea as distinguished from shallow waters or waters near or along the shores. The fishes caught were locally known as "vulgan," "bulawis," "pacol," and "bag-angan." They are generally described as "isda sa bato" or "bottom feeders." The following excerpt from the testimony of fish examiner Joey de la Cruz shows that the term "deep sea fishes" arose from the trial court's erroneous translation of "isda sa bato' or "bottom feeders" which were the terms actually employed by said witness to describe the subject fishes: ATTY. LUMAWAG: Q What were the species of the fishes that you recovered from that banca? A Bottom feeders. COURT: 'Isda sa bato,' in English? A Bottom feeders. COURT: Deep sea fishes. 21 Petitioners next contend that if it is true that they were engaged in illegal fishing, it would be "unnatural" for them to use a boat which would make it difficult for them to escape from the law enforcers riding motorized boats. 22 Petitioners' contention is too ludicrous to warrant serious consideration. The law punishing illegal fishing does not require the use of motorized banca or boat for the crime to be committed. Concededly, a motorized banca can better serve those engaged in illegal fishing for purposes of eluding law enforces. However, not

287 everyone can financially afford to fit a motor in his banca. Indeed, petitioner Argoncillo admitted that the banca that they were using was leased from a certain Dikoy Odrunia. 23 Petitioners likewise aver that they did not flee when the law enforcers arrived, and even voluntarily reported to the Ivisan Police Station the following morning. They submit that their alleged non-flight should strengthen their claim of innocence. 24 We disagree. There is no established doctrine to the effect that, in every instance, non-flight is an indication of innocence. 25 Moreover, even if they wanted to, petitioners could not have possibly eluded the law enforcers who were in two pump boats. Attempts to flee would also have been useless since petitioners were already identified by the barrio captain. cdasia Lastly, the fact that the accused were asked by the patrol team whether or not they heard an explosion is not in any way reflective of petitioners' innocence. We deem such inquiry as nothing more than a part of the investigative process. It is quite common, and in most cases, necessary, for law enforcers to ask questions to help them ascertain whether or not there exists probable cause to arrest persons suspected of committing a crime. Having failed to discharge themselves of the burden of disproving that they have committed illegal fishing, the Court is left with no alternative but to affirm petitioners' conviction. The penalty imposed by law 26 for illegal fishing if explosive is actually used is imprisonment ranging from twenty (20) years to life imprisonment. The Indeterminate Sentence Law provides that if, as in this case, the offense is punished by a law other than the Revised Penal Code, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. 27 The trial court therefore erred when it sentenced petitioners to "suffer a straight penalty of twenty (20) years imprisonment. 28 In Spouses Jose and Trinidad Bacar vs. Judge Salvador P. de Guzman, Jr., 29 we held that it was erroneous to impose a straight penalty of six (6) years imprisonment on the accused for homicide. We explained: . . . It is basic law that . . . the application of the Indeterminate Sentence Law is mandatory where imprisonment exceeds one (1) year, except only in the following cases: a. Offenses punished by death or life imprisonment. b. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115). c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art. 139), or espionage (Art. 117). d. Those convicted of piracy (Art. 122). e. Habitual delinquents (Art. 62, par. 5). Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L28547, Feb. 22, 1974). Offender is not disqualified to avail of the benefits of the law even if the crime is committed while he is on parole. (People v. Calreon, CA 78 O.G. 6701, Nov. 19, 1982). f. Those who escaped from confinement or those who evaded sentence. g. Those granted conditional pardon and who violated the terms of the same (Art. 159). (People v. Corral, 74 Phil. 359). h. Those whose maximum period of imprisonment does not exceed one year.

288 Where the penalty actually imposed does not exceed one year, the accused cannot avail himself of the benefits of the law, the application of which is based upon the penalty actually imposed in accordance with law and not upon that which may be imposed in the discretion of the Court. (People v. Hidalgo, [CA] G.R. No. 00452CR, Jan. 22, 1962). i. Those who are already, serving final judgment upon the approval of the Indeterminate Sentence Law. The need for specifying the minimum and maximum periods of the indeterminate sentence is to prevent the unnecessary and excessive deprivation of liberty and to enhance the economic usefulness of the accused, since he may be exempted from serving the entire sentence, depending upon his behavior and his physical, mental, and moral record. The requirement of imposing an indeterminate sentence in all criminal offenses whether punishable by the or by special laws, with definite minimum and maximum terms, as the Court deems proper within he legal range of the penalty specified by the law must, therefore, be deemed mandatory. 30 Accordingly, the proper penalty to be imposed upon the accused should be an indeterminate penalty which is hereby set at twenty (20) years as minimum to twenty-five (25) years as maximum. WHEREFORE, the petition is hereby DISMISSED, and the decision of the Court of Appeals is AFFIRMED with the modification that petitioners are hereby sentenced to suffer an indeterminate penalty of imprisonment ranging from twenty (20) years as minimum to twenty-five (25) years as maximum. SO ORDERED.

/RonaldOrtiz2000

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